Resolução da Assembleia da República n.º 75-B/94

Resolução da Assembleia da República n.º 75-B/94, de 27 de dezembro

Em vigor

Emitente:

Informação da publicação

Publicação:Diário da República n.º 298/1994, 5º Suplemento, Série I-A de 1994-12-27

Data de Publicação:

SUMÁRIO

Aprova, para ratificação, o Acordo Que Cria a Organização Mundial do Comércio, seus anexos, decisões, declarações ministeriais e o Acto Final, que consagra os resultados das negociações comerciais multilaterais do Uruguay Round

TEXTO

Resolução da Assembleia da República n.º 75-B/94

APROVA, PARA RATIFICAÇÃO, O ACORDO QUE CRIA A ORGANIZAÇÃO MUNDIAL DO COMÉRCIO, SEUS ANEXOS, DECISÕES, DECLARAÇÕES MINISTERIAIS E O ACTO FINAL, QUE CONSAGRA OS RESULTADOS DAS NEGOCIAÇÕES COMERCIAIS MULTILATERAIS DO URUGUAY ROUND, ASSINADOS EM MARRÁQUEXE EM 15 DE ABRIL DE 1994.

A Assembleia da República resolve, nos termos dos artigos 164.º, alínea j), e 169.º, n.º 5, da Constituição, aprovar, para ratificação, o Acordo Que Cria a Organização Mundial do Comércio e respectivos anexos, decisões e declarações ministeriais e o Acto Final, que consagra os resultados das negociações comerciais multilaterais do Uruguay Round, assinados em Marráquexe em 15 de Abril de 1994, cuja versão autêntica em língua inglesa e respectiva tradução em língua portuguesa seguem em anexo à presente resolução.

Aprovada em 15 de Dezembro de 1994.

O Presidente da Assembleia da República, António Moreira Barbosa de Melo.

THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS

LIST OF ABREVIATIONS

AMS - Aggregate Measurement of Support (in Agreement on Agriculture)

BISD - Basic Instruments and Selected Documents (published by GATT).

CCC - Customs Co-operation Council.

CCC Secretariat - Secretariat of the Customs Co-operation Council.

Dispute Settlement Understanding/DSU - Understanding on Rules and Procedures Governing the Settlement of Disputes.

DSB - Dispute Settlement Body.

FAO - Food and Agriculture Organization of the United Nations.

GATS - General Agreement on Trade in Services.

GATT 1994 - General Agreement on Tariffs and Trade 1994.

HS - Harmonized Commodity Description and Coding System.

IMF - International Monetary Fund.

ISO - International Organization for Standardization.

ISO/IEC - ISO/International Electrotechnical Commission.

MFA - Arrangement Regarding International Trade in Textiles.

PGE - Permanent Group of Experts (in Agreement on Subsidies and Countervailing Measures).

SCM - Subsidies and Countervailing Measures.

Secretariat - Secretariat of the World Trade Organization.

SSG - Special Safeguard (in Agreement on Agriculture).

ST - Special Treatment (in Annex 5, Agreement on Agriculture).

TMB - Textiles Monitoring Body.

TPRB - Trade Policy Review Body.

TPRM - Trade Policy Review Mechanism.

TRIMs - Trade-Related Investment Measures.

TRIPS - Trade-Related Aspects of Intellectual Property Rights.

TSB - Textiles Surveillance Body.

WIPO - World Intellectual Property Organization.

World Bank - International Bank for Reconstruction and Development.

WTO - World Trade Organization.

WTO Agreement - Agreement Establishing the World Trade Organization.

Marrakesh Declaration of 15 April 1994

Ministers:

Representing the 124 Governments and the European Communities participating in the Uruguay Round of Multilateral Trade Negotiations, on the occasion of the final session of the Trade Negotiations Committee at Ministerial level held at Marrakesh, Morocco from 12 to 15 April 1994;

Recalling the Ministerial Declaration adopted at Punta del Este, Uruguay on 20 September 1986 to launch the Uruguay Round of Multilateral Trade Negotiations;

Recalling the progress achieved at the Ministerial meetings held at Montreal, Canada and Brussels, Belgium in December of 1988 and 1990 respectively;

Noting that the negotiations were substantially concluded on 15 December 1993;

Determined to build upon the success of the Uruguay Round through the participation of their economies in the world trading system, based upon open, market-oriented policies and the commitments set out in the Uruguay Round Agreements and Decisions;

have today adopted the following declaration:

1 - Ministers salute the historic achievement represented by the conclusion of the Round, which they believe will strengthen the world economy and lead to more trade, investment, employment and income growth throughout the world. In particular, they welcome:

The stronger and clearer legal framework they have adopted for the conduct of international trade, including a more effective and reliable dispute settlement mechanism;

The global reduction by 40 per cent of tariffs and wider market-opening agreements on goods, and the increased predictability and security represented by a major expansion in the scope of tariff commitments; and

The establishment of a multilateral framework of disciplines for trade in services and for the protection of trade-related intellectual property rights, as well as the reinforced multilateral trade provisions in agriculture and in textiles and clothing.

2 - Ministers affirm that the establishment of the World Trade Organization (WTO) ushers in a new era of global economic cooperation, reflecting the widespread desire to operate in a fairer and more open multilateral trading system for the benefit and welfare of their peoples. Ministers express their determination to resist protectionist pressures of all kinds. They believe that the trade liberalization and strengthened rules achieved in the Uruguay Round will lead to a progressively more open world trading environment. Ministers undertake, with immediate effect and until the entry into force of the WTO, not to take any trade measures that would undermine or adversely affect the results of the Uruguay Round negotiations or their implementation.

3 - Ministers confirm their resolution to strive for greater global coherence of policies in the fields of trade, money and finance, including cooperation between the WTO, the IMF and the World Bank for that purpose.

4 - Ministers welcome the fact that participation in the Uruguay Round was considerably wider than in any previous multilateral trade negotiation and, in particular, that developing countries played a notably active role in it. This has marked a historic step towards a more balanced and integrated global trade partnership. Ministers note that during the period these negotiations were underway significant measures of economic reform and autonomous trade liberalization were implemented in many developing - countries and formerly centrally planned economies.

5 - Ministers recall that the results of the negotiations embody provisions conferring differential and more favourable treatment for developing economies, including special attention to the particular situation of least-developed countries. Ministers recognize the importance of the implementation of these provisions for the least-developed countries and declare their intention to continue to assist and facilitate the expansion of their trade and investment opportunities. They agree to keep under regular review by the Ministerial Conference and the appropriate organs of the WTO the impact of the results of the Round on the least-developed countries as well as on the net food-importing developing countries, with a view to fostering positive measures to enable them to achieve their development objectives. Ministers recognize the need for strengthening the capability of the GATT and the WTO to provide increased technical assistance in their areas of competence, and in particular to substantially expand its provision to the least-developed countries.

6 - Ministers declare that their signature of the «Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations» and their adoption of associated Ministerial Decisions initiates the transition from the GATT to the WTO. They have in particular established a Preparatory Committee to lay the ground for the entry into force of the WTO Agreement and commit themselves to seek to complete all steps necessary to ratify the WTO Agreement so that it can enter into force by 1 January 1995 or as early as possible thereafter. Ministers have furthermore adopted a Decision on Trade and Environment.

7 - Ministers express their sincere gratitude to His Majesty King Hassan II for his personal contribution to the success of this Ministerial Meeting, and to his Government and the people of Morocco for their warm hospitality and the excellent organization they have provided. The fact that this final Ministerial Meeting of the Uruguay Round has been held at Marrakesh is an additional manifestation of Morocco's commitment to an open world trading system and to its fullest integration to the global economy.

8 - With the adoption and signature of the Final Act and the opening for acceptance of the WTO Agreement, Ministers declare the work of the Trade Negotiations Committee to be complete and the Uruguay Round formally concluded.

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.

For the People's Democratic Republic of Algeria:

(Sous réserve de ratification.)

Mustapha Mokraoui.

For the Republic of Angola:

J. Eduardo Pinnock.

For Antigua and Barbuda:

J. A. E. Thomas.

For the Argentine Republic:

Guido Di Tella.

For Austrália:

R. Francis McMullan.

For the Republic of Austria:

Wolfgang Schlüssel.

For the State of Bahrain:

(Subject to ratification.)

Habib A. Qassim.

For the People's Republic of Bangladesh:

Shamsul Islam.

For Barbados:

Warwick O. Franklin.

For the Kindgom of Belgim, the French Community of Belgium, the Flemish Community of Belgium, the German-language Community of Belgium, the Walloon Tegion of Belgium, the Flemish Region of Belgium, and the Brussels-Capital Region of Belgium:

(Subject to ratification.)

R. Urbain.

For Belize:

Jean Tamer.

For the Republic of Benin:

Yacoubou A. Fassassi.

For the Republic of Bolivia:

M. Reyes Chavez.

For the Republic of Botswana:

P. H. K. Kedikilwe.

For the Federative Republic of Brazil:

C. L. N. Amorim.

For Brunei Darussalam:

P. D. Abdul-Rahman Taib.

For Burkina Faso:

For the Republic of Burundi:

Claudine Matuturu.

For the Republic of Cameroon:

F.-Xavier Ngoubeyou.

For Canada:

Roy MacLaren.

For the Central African Republic:

L. Odoudou Ignabode.

For the Republic of Chad:

For the Republic of Chile:

Carlos Figueroa Serrano.

For the People's Republic of China:

Gu Jongjiang.

For the Republic of Colombia:

Juan M. Santos.

For the Republic of the Congo:

Maurice Mouabenga.

For the Republic of Costa Rica:

Roberto Rojas.

For the Republic of Côte d'Ivoire:

Amara Essy.

For the Republic of Cuba:

Cabrisas Ruiz.

For the Republic of Cyprus:

A. P. Michaeldies.

For the Czech Republic:

Vladimir Dlouhy.

For the Kindgom of Denmark:

Niels L. Helveg Petersen.

For the Commonwealth of Dominica:

For the Dominican Republic:

Federico A. Cuello.

For the Arab Republic of Egypt:

M. Mohamed Mahmoud.

For the Republic of El Salvador:

M. A. Salaverria.

For the European Communities:

G. Romaios.

L. Brittan.

For the Republic of Fiji:

Kaliopate Tavola.

For the Republic of Finland:

Pertti Salolainen.

For the French Republic:

G. Longuet.

For the Gabonese Republic:

Patrice Nziengui.

For the Republic of Gambia:

For the Federal Republic of Germany:

(Subject to ratification.)

G. Rexrodt.

Alois Jelonek.

For the Republic of Ghana:

Emma Mitchell.

For the Hellenic Republic:

Theodoros Pangalos.

For Grenada:

For the Republic of Guatemala:

Marithza Ruiz de Vielman.

For the Republic of Guinea-Bissau:

Ansumane Mane.

For the Republic of Guyana:

M. Shree Chand.

For the Republic of Haiti:

For the Republic of Honduras:

D. Urbizo Panting.

For Hong Kong:

T. H. Chau.

For the Republic of Hungary:

Béla Kádár.

For the Republic of Iceland:

Jon Baldvin Hannibalsson.

For the Republic of India:

Pranab Mukherjee.

For the Republic of Indonesia:

S. B. Joedono.

For Ireland:

Charles Mccreevy.

For the State of Israel:

M. Harish.

For the Italian Republic:

Paolo Baratta.

For Jamaica:

P. Robertson.

For Japan:

T. Hata.

For the Republic of Kenya:

R. Laibon M'Munkindia.

For the Republic of Korea:

Chulsu Kim.

For the State of Kuwait:

Walid A. Al Wahib.

For the Kingdom of Lesotho:

For the Principality of Liechtenstein:

Andrea Willi.

For the Grand Duchy of Luxembourg:

Georges Wohlfart.

For Macau:

V. Rodriguez Pessoa.

For the Republic of Madagascar:

Jacques Sylla.

For the Republic of Malawi:

M. W. Mbekeani.

For the Malaysia:

Rafidah Aziz.

For the Republic of Maldives:

For the Republic of Mali:

Ahmad Ag Hamani.

For the Republic of Malta:

Anthony E. Borg.

For the Islamic Republic of Mauritania:

Ould Cheikh Melainine Chebih.

For the Republic of Mauritius:

A. K. Bachoo.

For the United Mexican States:

J. Serra Puche.

For the Kingdom of Morocco:

Abdellatif Filali.

For the Republic of Mozambique:

D. G. Tembe.

For the Union of Myanmar:

Brigadier D. O. Abel.

For the Republic of Namibia:

H. Hamutenya.

For the Kingdom of the Netherlands:

Y. van Rooy.

For New Zealand:

P. Burdon.

For the Republic of Nicaragua:

E. Belli Pereira.

For the Republic of Niger:

Maliki Barhouni.

For the Federal Republic of Nigeria:

Chief Melford Okilo.

For the Kingdom of Norway:

Grete Knudsen.

For the Islamic Republic of Pakistan:

Ahmad Mukhtar.

For the Republic of Paraguay:

Luis M. Ramirez-Boettner.

For the Republic of Peru:

Efrain Goldenberg.

For the Republic of the Philippines:

Rizalino S. Navarro.

For the Republic of Poland:

Leslaw Podkanski.

For the Portuguese Republic:

José M. D. Barroso.

For the State of Qatar:

A. Ahmed Al-Suleiti.

For Romania:

M. Berinde.

For the Rwandese Republic:

For Saint Kitts and Nevis:

For Saint Lucia:

Edwin Laurent.

For Saint Vincent and the Grenadines:

For the Republic of Senegal:

Moustapha Niasse.

For the Republic of Sierra Leone:

For the Republic of Singapore:

Yeo Cheow Tong.

For the Slovak Republic:

Peter Magvasi.

For the Republic of South Africa:

D. L. Keys.

For the Kingdom of Spain:

J. Gomez-Navarro.

For the Democratic Socialist Republic of Sri Lanka:

A. R. Munsoor.

For the Republic of Suriname:

R. B. Kalloe.

For the Kingdom of Swaziland:

For the Kingdom of Sweden:

(Subject to ratification.)

Ulf Dinkelspiel.

For the Swiss Confederation:

J.-P. Delamuraz.

For the United Republic of Tanzania:

C. D. Msuya.

For the Kingdom of Thailand:

S. Panitchpakdi.

For the Togolese Republic:

For the Republic of Trinidad and Tobago:

Ralph Maraj.

For the Republic of Tunisia:

(Subject to ratification.)

Habib B. Yahia.

For the Republic of Turkey:

Yener Dinçmen.

For the Republic of Uganda:

Richard Kaijuka.

For the United Arab Emirates:

S. A. Ghobash.

For the United Kingdom of Great Britain and Northern Ireland:

Timothy Sainsbury.

For the United States of America:

Michael Kantor.

For the Eastern Republic of Uruguay:

Sergio A. Bonilla.

For the Republic of Venezuela:

Alberto Poletto.

For the Republic of Zaire:

T. B. Tangale.

For the Republic of Zambia:

D. Patel.

For the Republic of Zimbabwe:

H. M. Murerwa.

MARRAKESH 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 lA (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 (ver nota 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 States (ver nota 2) 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 (ver nota 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 fourths (ver nota 4) of 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 fourths (ver nota 4) of the Members;

b) A request for a waiver concerning the Multilateral Trade Agreements in Annexes 1A or 1B 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 time period, the relevant Council shall submit a report to the Ministerial Conference.

(nota 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.

(nota 2) The number of votes of the European Communities and their member States shall in no case exceed the number of the members States of the European Communities.

(nota 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.

(nota 4) A decision to grant a waiver in respect of any obligation subject to a transition 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 - 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 threefourths 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 the 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.

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 IA 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 the 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 Agreement (ver nota 1);

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.

(nota 1) The waivers covered by this provision are listed in footnote 7 on pages 11 and 12 in Part 11 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 covered 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.

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 non-conforming 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 five-year 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 1, 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 1, 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 1. 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 (ver nota 2).

(nota 2) The activities of this working party shall be coordinated with those of the working group provided for in Section 111 of the Ministerial Decision on Notification Procedures adopted on 15 April 1994.

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 provisions (ver nota 3);

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.

(nota 3) 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 applied by the Dispute Settlement Understanding may be invoked with respect to any matters arising from the application of restrictive import measures taken for balance-payments purposes.

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, 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 times-chedule, 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.

Article XXIV, 12

13 - Each Member is fully responsible under GATT 1994 for the observance of all provisions of GATT 1994, and shall take such reasonable measures as may be available to it to ensure such observance by regional and local governments and authorities within its territory.

14 - The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding may be invoked in respect of measures affecting its observance taken by regional or local governments or authorities within the territory of a Member. When the Dispute Settlement Body has ruled that a provision of GATT 1994 has not been observed, the responsible Member shall take such reasonable measures as may be available to it to ensure its observance. The provisions relating to compensation and suspension of concessions or other obligations apply in cases where it has not been possible to secure such observance.

15 - 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 GATT 1994 taken within the territory of the former.

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 I, 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:

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;

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 I 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 1, a), and 1, c), 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 6, a), 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 nontariff 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

1 - 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 duties (ver nota 1), except as otherwise provided for in Article 5 and Annex 5.

(nota 1) 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.

Article 5

Special safeguard provisions

1 - Notwithstanding the provisions of paragraph l, 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 price (ver nota 2) for 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 1, a) and paragraph 4, but imports under such commitments shall not be affected by any additional duty imposed under either subparagraph 1, a) and paragraph 4 or subparagraph 1, b) 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 1, a) 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 1, a) in that year.

4 - Any additional duty imposed under subparagraph 1, a) 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 consumption (ver nota 3) during 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 1, b) 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 1, a) 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 1, b).

7 - The operation of the special safeguard shall be carried out in a transparent manner. Any Member taking action under subparagraph 1, a) 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 1, b) 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 1, b) 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 1, a) 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.

(nota 2) 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.

(nota 3) Where domestic consumption is not taken into account, the base trigger level under subparagraph 4, a) shall apply.

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 2, a) 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 duties (ver nota 4);

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

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.

(nota 4) «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.

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 Commitee 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; plus (ver nota *)

ii) HS Code 2905.43 (mannitol);

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.

(nota *) The product descriptions in round brackets are not necessarily exhaustive.

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 purposes (ver nota 5). -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 aid (ver nota 6). - 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.

(nota 5) 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.

(nota 5) & (nota 6) 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.

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;

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;

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, non-exempt 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 instalments. 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 instalments 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 instalments 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 ordinaly 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 XX, b) (ver nota 1);

hereby agree as follows:

(nota 1) In this Agreement, reference to Article XX, b), includes also the chapeau of that Article.

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 (ver nota 2). 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.

(nota 2) 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 or phytosanitary protection.

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 (ver nota 3).

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.

(nota 3) For purposes of paragraph 6 of Article 5, a mesure is not more trade-restrictive than required unless there is another mesure, 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.

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

DEFINITIONS (ver nota 4)

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.

(nota 4) 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.

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 regulations (ver nota 5) which 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.

(nota 5) Sanitary and phytosanitary measures such as laws, decrees or ordinances which are applicable generally.

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 nationals (ver nota 6) of the Member concerned.

(nota 6) 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 or commercial establishment in that customs territory.

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) Lows 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 - 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 PROCEDURES (ver nota 7)

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.

(nota 7) Control, inspection and approval procedures include, inter alia, procedures for sampling, testing and certification.

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. (ver nota 1)

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.

(nota 1) To the extent possible, exports from a least-developed country Member may also benefit from this provision.

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 year (ver nota 2), 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.

(nota 2) The «agreement year» is defined to mean a 12-month period beginning from me date of entry into force of the WTO Agreement and at the subsequent 12-month intervals.

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 (ver nota 3). Restrictions not notified within 60 days of the date of entry into force of the WTO Agreement shall be terminated forthwith.

(nota 3) 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.

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 app1y, 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 restrictions (ver nota 4) on 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 GAIT 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 GAIT 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.

(nota 4) Restrictions denote all unilateral quantitative restrictions, bilateral arrangements and other measures having a similar effect.

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 six 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 Member (ver nota 5), it 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.

(nota 5) 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.

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 imminent (ver nota 6), 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.

(nota 6) 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.

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 reimportation, 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 are 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.

(ver documento original)

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

(ver documento original)

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 - 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 ~f 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 t]hey 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 - 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 nonconformity 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 non-governmental 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 non-governmental 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 non-governmental 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 nationals (ver nota 1) 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.

(nota 1) «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.

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 non-governmental 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, consultations 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 - 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 ISOIEC 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.

O - 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 liberalisation 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 GATI 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 (ver nota 1).

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 (ü) 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.

(nota 1) 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.

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

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 initiated (ver nota 1) and 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.

(nota 1) 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.

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 country (ver nota 2), 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.

(nota 2) 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.

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 authorities (ver nota 3) determine that such sales are made within an extended period of time (ver nota 4) in substantial quantities (ver nota 5) 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.

(nota 3) When in this Agreement the term «authorities» is used, it shall be interpreted as meaning authorities at an appropriate senior level.

(nota 4) The extended period of time should normally be one year but shall in no case be less than six months.

(nota 5) 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.

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 (ver nota 6).

(nota 6) 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.

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 (ver nota 7). In 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 sale (ver nota 8), 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.

(nota 7) 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.

(nota 8) Normally, the date of sale would be the date of contract, purchase order, order confirmation, or invoice, whichever establishes the material terms of sale.

Article 3

Determination of injury (ver nota 9)

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 (ver nota 10). 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 - 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.

(nota 9) 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.

(nota 10) 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.

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 related (ver nota 11) to 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 1, ii), anti-dumping duties shall be levied (ver nota 12) 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 anti-dumping 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.

(nota 11) 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.

(nota 12) As used in this Agreement «levy» shall mean the definitive or final legal assessment or collection of a duty or tax.

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 expressed (ver nota 13) by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry (ver nota 14). The 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.

(nota 13) 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.

(nota 14) 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.

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 (ver nota 15). Due 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 exporters (ver nota 16) and 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 (ver nota 17).

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 (ver nota 18).

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.

(nota 15) 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.

(nota 16) 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.

(nota 17) Members are aware that in the territory of certain Members disclosure pursuant to a narrowly-drawn protective order may be required.

(nota 18) Members agree that requests for confidentiality should not be arbitrarily rejected.

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 of 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 (ver nota 19) be 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.

(nota 19) 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.

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 (ver nota 20). Any refund shall be made promptly and normally in not more than 90 days following the determination of final liability made pursuant to this subparagraph. 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 anti-dumping 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.

(nota 20) It is understood that observance of the time-limits mentioned in this subparagraph 3.2 may not be possible where the product in question is judicial review proceedings.

Article 10

Rectroactivity

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

1.1 - 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 (ver nota 21). 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 (ver nota 22). The 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.

(nota 21) 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.

(nota 22) When the amount of the anti-dumping duty is assessed on a retrospective basis, 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.

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 report (ver nota 23), 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) 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.

(nota 23) where authorities provide information under explanations under the provisions of this Article in a separate report, they shall ensure that such report is readily available to the public.

Article 13

Judicial review

Each Member whose national legislation contains provisions on anti-dumping 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 I 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 (ver nota 24).

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 Comtnittee 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.

(nota 24) This is not intended to preclude action under other relevant provisions of GATT 1994, as appropriate.

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 I 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 1, a), 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 1, 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 inco rporated 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 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.

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

Consultation 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), üi), 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 I 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 S 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.

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 1, a), 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 1, b):

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 transaction 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 2, b), 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 2, b), is met, it is not necessary to examine the question of influence under paragraph 2, a). If the customs administration has already sufficient information to be satisfied, without further detailed inquiries, that one of the tests provided in paragraph 2, b), has been met, there is no reason for it to require the importer to demonstrate that the test can be met. In paragraph 2, b), the term «unrelated buyers» means buyers who are not related to the seller in any particular case.

Paragraph 2, b):

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 2, b), 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.

(ver documento original)

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:

(ver documento original)

b) Totals:

(ver documento original)

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 l, b), 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 1, a), iv), of Article 5 shall be deducted under the provisions of paragraph 1, a), 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 1, a), 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 1, a), 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 l, a), 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 l, b), 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 1, b), 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 l, b), 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 l, b), of Article 6 covers the direct and indirect costs of producing and selling the goods for export which are not included under paragraph l, a), 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 1, a), of Article 5 could be flexibly interpreted; the «90 days» requirement could be administered flexibly.

Note to Article 8

Paragraph 1, a), 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 1, b), ii):

1 - There are two factors involved in the apportionment of the elements specified in paragraph 1, b), 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 dme 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 1, b), iv):

1 - Additions for the elements specified in paragraph l, b), 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 l, c):

1 - The royalties and licence fees referred to in paragraph l, c), 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 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.

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.

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 (ver nota 1).

(nota 1) 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.

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 GAIT 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 standards (ver nota 2) apply.

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-a-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 (ver nota 3).

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. The 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 underinvoicing and fraud, preshipment inspection entities conduct price verification (ver nota 4) according 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 vvhich 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.

(nota 2) An international standard is a standard adopted by a governmental or non-governmental body whose membership is open to all Members, one of whose recognized activities is in me field of standardization.

(nota 3) It is understood that, for the purposes of this Agreement, «force majeure» shall mean «irresistible compulsion or coercion, unforeseeable course of events excusing from fulfilment of contract».

(nota 4) 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 IA of the WTO Agreement.

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 (ver nota 5).

(nota 5) It is understood that such technical assistance may be given on a bilateral, plurilateral or multilateral basics.

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) 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.

GREEMENT ON RULES OF ORIGIN

Members:

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, III, 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 (ver nota 1).

(nota 1) 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.

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 subparagrapha);

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 concerned (ver nota 2);

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 days (ver nota 3) 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 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.

(nota 2) 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.

(nota 3) 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.

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 than de minimis modifications, 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 prerequisite 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 processes. - The 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 percentages (ver nota 4) and/or manufacturing or processing operations (ver nota 5), 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 2, c), 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 2, c), the Committee shall consider the results in terms of their overall coherence.

Results of the harmonization work programmeand 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 (ver nota 6). The Ministerial Conference shall establish a time-frame for the entry into force of this annex.

(nota 4) If the ad valorem criterion is prescribed, the method for calculating this percentage shall also be indicated in the rules of origin.

(nota 5) If the criterion of manufacturing or processing operation is prescribed, the operation that confers origin on the product concerned shall be precisely specified.

(nota 6) At the same time, consideration shall be given to arrangements concerning the settlement of disputes relating to customs classification.

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 as 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 days (ver nota 7) 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 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.

(nota 7) 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.

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 procedures (ver nota 1) used 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 (ver nota 2).

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 governments (ver nota 3) and 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.

(nota 1) Those procedures referred to as «licensing» as well as other similar administrative procedures.

(nota 2) 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.

(nota 3) For the purpose of this Agreement, the term «governments» is deemed to include the competent authorities of the European Communities.

Article 2

Automatic import licensing (ver nota 4)

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 2, a).

2 - The following provisions (ver nota 5), 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 trade-restricting 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.

(nota 4) 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.

(nota 5) 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.

Article 3

Non-automatic import licensin

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 holders (ver nota 6) shall 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.

(nota 6) Sometimes referred to as «quota holders».

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 non-automatic 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 procedures (ver nota 7) and 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.

(nota 7) Originally circulated as GATT 1947 document L/3515 of 23 March 1971.

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 1

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) (ver nota 1);

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.

(nota 1) 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 from 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.

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 conditions (ver nota 2) governing 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 (ver nota 3). In 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.

(nota 2) 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.

(nota 3) 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.

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 fact (ver nota 4), whether solely or as one of several other conditions, upon export performance, including those illustrated in Annex I (ver nota 5);

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.

(nota 4) 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.

(nota 5) Measures referred to in Annex I as not constituting export subsidies shall not be prohibited under this or any other provision of this Agreement.

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 days (ver nota 6) 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 Experts (ver nota 7) (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 time-limit 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 formaly 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 (ver nota 8).

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 appropriate (ver nota 9) countermeasures, 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 (ver nota 10).

4.12 - For purposes of disputes conducted pursuant to this Article, except for time-periods specifically prescribed in this Article, time-periods applicable under the DSU for the conduct of such disputes shall be half the time prescribed therein.

(nota 6) Any time periods mentioned in this Article may be extended by mutual agreement.

(nota 7) As established in Article 24.

(nota 8) If a meeting of the DSB is not scheduled during this period such a meeting shall be held for this purpose.

(nota 9) 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.

(nota 10) 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.

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 l, adverse effects to the interests of other Members, i.e.:

a) Injury to the domestic industry of another Member (ver nota 11);

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 1994 (ver nota 12);

c) Serious prejudice to the interests of another Member (ver nota 13).

This Article does not apply to subsidies maintained on agricultural products as provided in Article 13 of the Agreement on Agriculture.

(nota 11) The term «injury to the domestic industry» is used here in the same sense as it is used in Part V.

(nota 12) The term «nullification or impairment» isused 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.

(nota 13) 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.

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 subsidization (ver nota 14) of a product exceeding 5 per cent (ver nota 15);

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 (ver nota 16).

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 commodity (ver nota 17) as 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 3, b), 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 ofthe 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 thesubsidy.

6.5 - For the purpose of paragraph 3, c), 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 non-subsidized 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 exist (ver nota 18) during 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 non-commercial 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.

(nota 14) The total ad valorem subsidization shall be calculated in accordance with the provisions of Annex IV.

(nota 15) 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.

(nota 16) 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.

(nota 17) Unless other multilaterally agreed specific rules apply to the trade in the product or commodity in question.

(nota 18) 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.

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 prejudice (ver nota 19) 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 days (ver nota 20), 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 DSB(ver nota 21) 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.

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 (ver nota 22).

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.

(nota 19) 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.

(nota 20) Any time periods mentioned in this Article may be extended by mutual agreement.

(nota 21) If a meeting of the DSB is not scheduled during this period, such a meeting shall be held for this purpose.

(nota 22) If a meeting of the DSB is not scheduled during this period, such a meeting shall be held for this purpose.

PART IV

Non-actionable subsidies

Article 8

Identification of non-actionable subsidies

8.1 - The following subsidies shall be considered as non-actionable (ver nota 23):

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 2, a), 2, b), or 2, c), 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 (ver nota 24) (ver nota 25) (ver nota 26) the assistance covers (ver nota 27) not more than 75 per cent of the costs of industrial research (ver nota 28) or 50 per cent of the costs of pre-competitive development activity (ver nota 29) (ver nota 30), and 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 development (ver nota 31) 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 criteria (ver nota 32), 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 facilities (ver nota 33) to 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 (ver nota 34).

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.

(nota 23) 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.

(nota 24) 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.

(nota 25) 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 2, a), 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.

(nota 26) 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.

(nota 27) 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.

(nota 28) 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.

(nota 29) 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.

(nota 30) 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.

(nota 31) 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.

(nota 32) «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 he 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.

(nota 33) 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.

(nota 34) It is recognized that nothing in this notification provision requires the provision of confidential information including confidential business information.

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 GATT 1994 (ver nota 35)

Members shall take all necessary steps to ensure that the imposition of a countervailing duty (ver nota 36) on 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 initiated (ver nota 37) and conducted in accordance with the provisions of this Agreement and the Agreement on Agriculture.

(nota 35) 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 1, a), 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.

(nota 36) 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.

(nota 37) The term «initiated» as used hereinafter means procedural action by which a Member formally commences an investigation as provided in Article 11.

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:

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 expressed (ver nota 38) by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry (ver nota 39). The 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.

(nota 38) 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.

(nota 39) 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.

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 (ver nota 40). Due 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 exporters (ver nota 41) and 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 (ver nota 42).

12.4.1 - The authorities shall require interested Members or 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 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 (ver nota 43).

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:

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.

(nota 40) 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.

(nota 41) 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.

(nota 42) Members are aware that in the territory of certain Members disclosure pursuant to a narrowly-drawn protective order may be required.

(nota 43) 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.

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 (ver nota 44).

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.

(nota 44) 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.

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 guarantee 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 ínjury (ver nota 45)

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 products (ver nota 46) and 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 effects (ver nota 47) of 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.

(nota 45) 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.

(nota 46) 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.

(nota 47) As set forth in paragraphs 2 and 4.

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 related (ver nota 48) to 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 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 paragraphs 1 and 2.

16.5 - The provisions of paragraph 6 of Article 15 shall be applicable to this Article.

(nota 48) 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.

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 may (ver nota 49) be suspended or terminated without the imposition of provisional measures or countervailing 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.

(nota 49) The word «may» shall not he interpreted to allow the simultaneous continuation of proceedings with the implementation of undertakings, except as provided in paragraph 4.

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 parties (ver nota 50) whose 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 levied (ver nota 51) on 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.

(nota 50) For the purpose of this paragraph, the term «domestic interested parties» shall include consumers and industrial users of the imported product subject to investigation.

(nota 51) As used in this Agreement «levy» shall mean the definitive or final legal assessment or collection of a duty or tax.

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 (ver nota 52). The 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.

(nota 52) 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.

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 report (ver nota 53), 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.

(nota 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.

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 ME 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 subsidies (ver nota 54), 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.

(nota 54) The Committee shall establish a Working Party to review the contents and form of the questionnaire as contained in BISD 9S/193-194.

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 1, a) 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 2, b), 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 subsidies (ver nota 55), 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 eight-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) on 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 2, b), 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 10, a), 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.

(nota 55) 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.

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 1, d), 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 (ver nota 56).

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.

(nota 56) This paragraph is not intended to preclude action under other relevant provisions of GATT 1994, where appropriate.

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 available (ver nota 57) on world markets to their exporters.

e) The full or partial exemption remission, or deferral specifically related to exports, of direct taxes (ver nota 58) or social welfare charges paid or payable by industrial or commercial enterprises (ver nota 59).

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 taxes(ver nota 58) in 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 taxes (ver nota 58) on 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) (ver nota 60). This 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 charges (ver nota 58) in 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 GATT 1994.

(nota 57) The term «commercially available» means that the choice between domestic and imported products is unrestricted and depends only on commercial considerations.

(nota 58) 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.

(nota 59) 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.

(nota 60) 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).

ANNEX II

GUIDELINES ON CONSUMPTION OF INPUTS IN THE PRODUCTION PROCESS (ver nota 61)

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.

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 which 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.

(nota 61) 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.

ANNEX III

GUIDELINES IN THE DETERMINATION OF SUBSTITUTION DRAWBACK SYSTEMS AS EXPORT SUBSIDIES

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.

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] (ver nota 62)

1 - Any calculation of the amount of a subsidy for the purpose of paragraph 1, a), 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's (ver nota 63) sales in the most recent 12-month period, for which sales data is available, preceding the period in which the subsidy is granted (ver nota 64).

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 (ver nota 65).

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 1, a), of Article 6.

(nota 62) 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 1, a), of Article 6.

(nota 63) The recipient firm is a firm in the territory of the subsidizing Member.

(nota 64) 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.

(nota 65) 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.

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 (ver nota 66). 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 (ver nota 67).

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 analyze 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.

(nota 66) In cases where the existence of serious prejudice has to be demonstrated.

(nota 67) 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.

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.

3 - It should be standard practice to obtain explicit agreement of the firms concerned in the exporting Member before the visit is finally scheduled.

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.

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 1, a), of Article 3 under the terms of paragraph 2, a), 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 2, b), of Article 27 when GNP per capita has reached $1,000 per annum (ver nota 68): Bolivia, Cameroon, Congo, Côte d'Ivoire, Dominican Republic, Egypt, Ghana, Guatemala, Guyana, India, Indonesia, Kenya, Morocco, Nicaragua, Nigeria, Pakistan, Philippines, Senegal, Sri Lanka and Zimbabwe.

(nota 68) 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.

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 Member (ver nota 1) may 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.

(nota 1) 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 he 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.

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 (ver nota 2).

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.

(nota 2) A Member shall immediately notify an action taken under paragraph 1 of Article 9 to the Committee on Safeguards.

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 (ver nota 3) (ver nota 4). These 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 Member (ver nota 5), 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.

(nota 3) 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.

(nota 4) 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.

(nota 5) The only such exception to which the European Communities is entitled is indicated in the Annex to this Agreement.

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 1, b) and 1, c), 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

ANNEX

Exception referred to in paragraph 2 of article 11

(ver documento original)

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 1

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 coverage (ver nota 1), 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 1, b), 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.

(nota 1) 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.

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 integration (ver nota 2) of 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.

(nota 2) 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.

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 4, a), 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 5, a), account shall be taken of international standards of relevant international organizations (ver nota 3) applied 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.

(nota 3) 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.

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, licences, 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 I 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 procedures (ver nota 4) for 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 2, e).

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.

(nota 4) It is understood that the procedures under paragraph 5 shall be the same as the GATT 1994 procedures.

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 (ver nota 5);

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 effective (ver nota 6) imposition or collection of direct taxes in respect of services or service suppliers of other Members;

e) Inconsistent with Article 11, 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.

(nota 5) 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.

(nota 6) 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 imposition 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.

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 1, b) 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 (ver nota 7). The 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.

(nota 7) A future work programme shall determine how, and in what time-frame, negotiations on such multilateral disciplines will he conducted.

PART III

Specific commitments

Article XVI

Market access

1 - With respect to market access through the modes of supply identified in Article 1, 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 (ver nota 8).

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(ver nota 9);

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.

(nota 8) 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 1, it is thereby committed to allow related transfers of capital into its territory.

(nota 9) Subparagraph 2, c), does not cover measures of a Member which limit inputs for the supply of services.

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 (ver nota 10).

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.

(nota 10) 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 suppliers.

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, includind those set out in paragraph I 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 111 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 1, b), 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 with-drawn 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 (ver nota 11). The Council shall refer the matter to arbitration. The decision of the arbitrator shall be final and binding on the Members.

(nota 11) 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.

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;

i) 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 (ver nota 12);

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 hears 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; and

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.

(nota 12) 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.

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 five years. The first such review shall take place no more than five 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 I 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 termination of the exemption period that the inconsistent measure has been brought into conformity with paragraph I of Article II of the Agreement.

Lists of Article II exemptions

[The agreed lists of exemptions under paragraph 2 of Article 11 appear as part of this Annex in the treaty copy of the WTO Agreement.]

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 (ver nota 13).

(nota 13) 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.

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 computerized 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 3, b), 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 3, c), 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 4, b), 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;

i) Reinsurance and retrocession;

ii) Insurance intermediation, such as brokerage and agency;

iii) Services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services;

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 1 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 (ver nota 14).

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.

(nota 14) This paragraph is understood to mean that each Member shall ensure that the obligations of this Annex are applied with respect to suppliers of public telecommunications transport networks and services by whatever measures are necessary.

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 111 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) (ver nota 15).

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 7, a);

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.

(nota 15) 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».

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 sub-regional 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 NEGOTIATONS ON BASIC TELECOMMUNICATIONS

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

SCHEDULE OF SPECIFIC COMMITMENTS

European Communities and Their Member States

(this is authentic in English only)

Introductory note

1 - The specific commitments in this schedule apply only to the territories in which the Treaties establishing the European Communities are applied and under the conditions laid down in these Treaties. These commitments apply only to the relations between the Communities and their Member States on the one hand, and non-Community countries on the other. They do not affect the rights and obligations of Member States arising from Community law.

2 - The following abbreviations are used to indicate the Member States:

B - Belgium;

D - Germany;

DK - Denmark;

E - Spain;

F - France;

GR - Greece;

I - Italy;

IRL - Ireland;

L - Luxembourg;

NL - The Netherlands;

P - Portugal;

UK - United Kingdom.

3 - The rights and obligations arising from the GATS, including the schedule of commitments, shall have no self-executing effect and thus confer no rights directly to individual natural persons or juridical persons.

4 - A glossary of terms used by individual Member States is attached to this schedule.

European Communities and their Member States - Schedule of specific commitments

Modes of supply:

1) Cross-border supply;

2) Consumption abroad;

3) Commercial presence;

4) Presence of natural persons.

(ver documento original)

ATTACHMENT A

Glossary

Terms used for individual Member States

France:

SC - Société Civile.

SCP - Société Civile Professionnelle.

SEL - Société d'Exercice Libéral.

SNC - Société en Nom Collectif.

SCS - Société en Commandite Simple.

SARL - Société à Responsabilité Limitée.

SCA - Société en Commandite par Actions.

SA - Société Anonyme.

N. B. - Toutes ces Sociétés sont dotées de la personnalité morale.

Germany:

GmbH & CoKG - Kommanditgesellschaft, bei der der persönlich haftende Gesellschafter iene GmbH (a stock company with limited responsibility) ist.

EWIV - Europäische Wirtschaftliche Interessenvereinigung (European Economic Interest Grouping).

Italy:

SPA - Società per Azioni (joint stock company).

SRL - Società a Responsabilità Limitada (company with limited responsibility).

For Italy the following professional services are covered in the EC offer:

Ragionieri-periti commerciali - Bookkeeping-accounting-auditing;

Commercialisti - Bookkeeping-accounting-auditing;

Geometri - Surveyors;

Ingegneri - Emgineers;

Architetti - Architects;

Geologi - Geologists;

Medici - Doctors;

Farmacisti - Pharmacist;

Psicilogi - Psychologists;

Veterinari - Veterinarians;

Biologi - Biologists;

Chimici - Chemists;

Periti agrari - Agricultural experts;

Agronomi - Agronomists;

Attuari - Actuarists.

FINAL LIST OF ARTICLE II (MFN) EXEMPTIONS

European Communities and their Member States

(this is authentic in English only)

European Communities and their Member States - Final list of article II (MFN) exemptions

(ver documento original)

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 basic 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 (ver nota 1). In 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 (ver nota 2). Any 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»).

(nota 1) When «nationals» are referred to in this Agreement, they shall he 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.

(nota 2) 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.

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 protection (ver nota 3) of 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.

(nota 3) 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.

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

Article 9

Relation to the Berne Convention

1 - Members shall comply with Articles I 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 ans 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 trademark 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 (ver nota 4).

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.

(nota 4) Notwithstanding the first sentence of Article 42, Members may, with respect to these obligations, instead provide for enforcement by administrative action.

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 (ver nota 5). Subject 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.

(nota 5) For the purposes 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.

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 importing (ver nota 6) for 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.

(nota 6) 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.

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 use (ver nota 7) of 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.

(nota 7) «Other use» refers to use other than that allowed under article 30.

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 (ver nota 8).

(nota 8) 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.

Article 34

Processo 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 1, b), 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 (ver nota 9): importing, 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.

(nota 9) 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.

Article 37

Acts not requiring the autorization 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 practices (ver nota 10) so 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 amont 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.

(nota 10) 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.

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 holders (ver nota 11) civil 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.

(nota 11) For the purpose of this Part, the term «right holder» includes federations and associations having legal standing to assert such rights.

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 measures (ver nota 12)

Article 51

Suspension of release by customs authorities

Members shall, in conformity with the provisions set out below, adopt procedures (ver nota 13) to enable a right holder, who has valid grounds for suspecting that the importation of counterfeit trademark or pirated copyright goods (ver nota 14) may 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.

(nota 12) 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.

(nota 13) 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.

(nota 14) 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.

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 o 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 intellectual 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

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 date 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 I 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 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 disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix I 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 (ver nota 1).

(nota 1) 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.

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 (ver nota 2).

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.

(nota 2) This paragraph shall also be applied to disputes on which panel reports have not been adopted or fully implemented.

Article 14

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 (ver nota 3).

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 agreements (ver nota 4), 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.

(nota 3) 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.

(nota 4) 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.

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 - When 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 (ver nota 5).

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.

(nota 5) 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.

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 governments (ver nota 6) 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 31S/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.

(nota 6) In the case where 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.

Article 9

Procedures of 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 timetable 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 meeting (ver nota 7) unless 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.

(nota 7) 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.

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. Persons 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 (ver nota 8). This adoption procedure is without prejudice to the right of Members to express their views on an Appellate Body report.

(nota 8) If a meeting of the DSB is not scheduled during this period, such a meeting of the DSB shall be held for this purpose.

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 concerned (ver nota 9) bring the measure into conformity with that agreement (ver nota 10). In 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.

(nota 9) The «Member concerned» is the party to the dispute to which the panel or Appellate Body recommendations are directed.

(nota 10) With respect to recommendations in cases not involving a violation of GATT 1994 or any other covered agreement, see Article 26.

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 days (ver nota 11) after 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 (ver nota 12). In such arbitration, a guideline for the arbitrator (ver nota 13) should 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.

(nota 11) If a meeting of the DSB is not scheduled during this period, such a meeting of the DSB shall he held for this purpose.

(nota 12) If the parties cannot agree on an arbitrator within 10 days after referring the matter to arbitration, the arbitrator shall be appointed by the Director-General within 10 days, after consulting the parties.

(nota 13) The expression «arbitrator» shall be interpreted as referring either to an individual or a group.

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 (ver nota 14);

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 arbitrator (ver nota 15) appointed 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 arbitrator (ver nota 16) acting 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 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 (ver nota 17).

(nota 14) The list in document MTN.GNS/W/120 identifies 11 sectors.

(nota 15) The expression «arbitrator» shall be interpreted as referring either to an individual or a group.

(nota 16) 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.

(nota 17) 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.

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 1, b), of Article XXIII of GATT 1994

Where the provisions of paragraph 1, b), 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 1, b) 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 1, c), of Article XXIII of GATT 1994

Where the provisions of paragraph 1, c), of Article XXIII of GATT 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 1, a), and 1 b), 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 36S161-67) 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

Responsabilities 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 IA: Multilateral Agreements on Trade in Goods;

Annex IB: General Agreement on Trade in Services;

Annex IC: 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

(ver documento original)

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 submissions of the parties:

1) Complaining Party: 3-6 weeks;

2) Party complained against: 2-3 weeks;

b) Date, time and place of firts 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 updated 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

The Agreement on Trade in Civil Aircraft, done at Geneva on 12 April 1979 (B1SD 26S/162), as subsequently modified, rectified or amended.

AGREEMENT ON GOVERNMENT PROCUREMENT

The Agreement on Government Procurement done at Marrakesh on 15 April 1994.

INTERNATIONAL DAIRY AGREEMENT

The International Dairy Agreement done at Marrakesh on 15 April 1994.

INTERNATIONAL BOVINE MEAT AGREEMENT

The International Bovine Meat Agreement done at Marrakesh on 15 April 1994.

MINISTERIAL DECISIONS AND DECLARATIONS

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 lime 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 foodimporting 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 - 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 list (ver nota 1) of 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.

(nota 1) This list does not alter existing notification requirements in the Multilateral Trade Agreements in Annex 1A to the WTO Agreement or, where applicable, the Plurilateral Trade Agreements in Annex 4 of 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 short-term 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/NG I 4/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 all (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.

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.

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 Cooperation 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 he 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 organization.

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 «NGB T») 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.

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 5, b), 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 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.

Decision on the acceptance of and accession to the Agreement Establishing the World Trade Organization.

Ministers:

Noting that Articles XI and XIV of the Agreement Establishing the World Trade Organization (hereinafter referred to as «WTO Agreement») provide that only contracting parties to the GATT 1947 as of the entry into force of the WTO Agreement for which schedules of concessions and commitments are annexed to GATT 1994 and for which schedules of specific commitments are annexed to the General Agreement on Trade in Services (hereinafter referred to as «GATS») may accept the WTO Agreement;

Noting further that paragraph 5 of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (hereinafter referred to as «Final Act» and «Uruguay Round» respectively) provides that the schedules of participants which are not contracting parties to GATT 1947 as of the date of the Final Act are not definitive and shall be subsequently completed for the purpose of their accession to GATT 1947 and their acceptance of the WTO Agreement;

Having regard to paragraph 1 of the Decision on Measures in Favour of Least-Developed Countries which provides that the least-developed countries shall be given an additional time of one year from 15 April 1994 to submit their schedules as required in Article XI of the WTO Agreement;

Recognizing that certain participants in the Uruguay Round which had applied GATT 1947 on a de facto basis and became contracting parties under Article XXVI, 5, c), of the GATT 1947 were not in a position to submit schedules to GATT 1994 and the GATS;

Recognizing further that some States or separate customs territories which were not participants In the Uruguay Round may become contracting parties to GATT 1947 before the entry into force of the WTO Agreement and that States or customs territories should be given the opportunity to negotiate schedules to GATT 1994 and the GATS so as to enable them to accept the WTO Agreement;

Taking into account that some States or separate customs territories which cannot complete the process of accession to GATT 1947 before the entry into force of the WTO Agreement or which do not intend to become contracting parties to GATT 1947 may wish to initiate the process of their accession to the WTO before the entry into force of the WTO Agreement;

Recognizing that the WTO Agreement does not distinguish in any way between WTO Members which accepted that Agreement in accordance with its Articles XI and XIV and WTO Members which acceded to it in accordance with its Article XII and wishing to ensure that the procedures for accession of the States and separate customs territories which have not become contracting parties to the GATT 1947 as of the date of entry into force of the WTO Agreement are such as to avoid any unnecessary disadvantage or delay for these States and separate customs territories;

decide that:

1 - a) Any Signatory of the Final Act:

- To which paragraph 5 of the Final Act applies; or

- To which paragraph 1 of the Decision on Measures in Favour of Least-Developed Countries applies; or

- Which became a contracting party under Article XXVI, 5, c), of the GATT 1947 before 15 April 1994 and was not in a position to establish a schedule to GATT 1994 and the GATS for inclusion in the Final Act; and

any State or separate customs territory:

- Which becomes a contracting party to the GATT 1947 between 15 April 1994 and the date of entry into force of the WTO Agreement

may submit to the Preparatory Committee for its examination and approval a schedule of concessions and commitments to GATT 1994 and a schedule of specific commitments to the GATS.

b) The WTO Agreement shall be open for acceptance in accordance with Article XIV of that Agreement by contracting parties to GATT 1947 the schedules of which have been so submitted and approved before the entry into force of the WTO Agreement.

c) The provisions of subparagraphs a) and b) of this paragraph shall be without prejudice to the right of the least-developed countries to submit their schedules within one year from 15 April 1994.

2 - a) Any State or separate customs territory may request the Preparatory Committee to propose for approval by the Ministerial Conference of the WTO the terms of its accession to the WTO Agreement in accordance with Article Xll of that Agreement. If such a request is made by a State or separate customs territory which is in the process of acceding to GATT 1947, the Preparatory Committee shall, to the extent practicable, examine the request jointly with the Working Party established by the Contracting Parties to GATT 1947 to examine the accession of that State or separate customs territory.

b) The Preparatory Committee shall submit to the Ministerial Conference a report on its examination of the request. The report may include a protocol of accession, including a schedule of concessions and commitments to GATT 1994 and a schedule of specific commitments for the GATS, for approval by the Ministerial Conference. The report of the Preparatory Committee shall be taken into account by the Ministerial Conference in its consideration of any application by the State or separate customs territory concerned to accede to the WTO Agreement.

Decision on trade and environment

Ministers:

Meeting on the occasion of signing the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations at Marrakesh on 15 April 1994,

Recalling the preamble of the Agreement establishing the World Trade Organization (WTO), which states that members' «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»;

Noting:

- The Rio Declaration on Environment and Development, Agenda 21, and its follow-up in GATT, as reflected in the statement of the Chairman of the Council of Representatives to the Contracting Parties at their 48th Session in December 1992, as well as the work of the Group on Environmental Measures and International Trade, the Committee on Trade and Development, and the Council of Representatives;

- The work programme envisaged in the Decision on Trade in Services and the Environment; and

- The relevant provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights;

Considering that there should not be, nor need be, any policy contradiction between upholding and safeguarding an open, non-discriminatory and equitable multilateral trading system on the one hand, and acting for the protection of the environment, and the promotion of sustainable development on the other;

Desiring to coordinate the policies in the field of trade and environment, and this without exceeding the competence of the multilateral trading system, which is limited to trade policies and those trade-related aspects of environmental policies which may result in significant trade effects for its members;

decide:

To direct the first meeting of the General Council of the WTO to establish a Committee on Trade and Environment open to all members of the WTO to report to the first biennial meeting of the Ministerial Conference after the entry into force of the WTO when the work and terms of reference of the Committee will be reviewed, in the light of recommendations of the Committee.

That the TNC Decision of 15 December 1993 which reads, in part, as follows:

a) To identify the relationship between trade measures and environmental measures, in order to promote sustainable development;

b) To make appropriate recommendations on whether any modifications of the provisions of the multilateral trading system are required, compatible with the open, equitable and non-discriminatory nature of the system, as regards, in particular:

- The need for rules to enhance positive interaction between trade and environmental measures, for the promotion of sustainable development, with special consideration to the needs of developing countries, in particular those of the least developed among them; and

- The avoidance of protectionist trade measures, and the adherence to effective multilateral disciplines to ensure responsiveness of the multilateral trading system to environmental objectives set forth in Agenda 21 and the Rio Declaration, in particular Principle 12; and

- Surveillance of trade measures used for environmental purposes, of trade-related aspects of environmental measures which have significant trade affects, and of effective implementation of the multilateral disciplines governing those measures;

constitutes, along with the preambular language above, the terms of reference of the Committee on Trade and Environment.

That, within these terms of reference, and with the aim of making international trade and environmental policies mutually supportive, the Committee will initially address the following matters, in relation to which any relevant issue may be raised:

- The relationship between the provisions of the multilateral trading system and trade measures for environmental purposes, including those pursuant to multilateral environmental agreements;

- The relationship between environmental policies relevant to trade and environmental measures with significant trade effects and the provisions of the multilateral trading system;

- The relationship between the provisions of the multilateral trading system and:

a) Charges and taxes for environmental purposes;

b) Requirements for environmental purposes relating to products, including standards and technical regulations, packaging, labelling and recycling;

- The provisions of the multilateral trading system with respect to the transparency of trade measures used for environmental purposes and environmental measures and requirements which have significant trade effects;

- The relationship between the dispute settlement mechanisms in the multilateral trading system and those found in multilateral environmental agreements;

- The effect of environmental measures on market access, especially in relation to developing countries, in particular to the least developed among them, and environmental benefits of removing trade restrictions and distortions;

- The issue of exports of domestically prohibited goods.

That the Committee on Trade and Environment will consider the work programme envisaged in the Decision on Trade in Services and the Environment and the relevant provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights as an integral part of its work, within the above terms of reference.

That, pending the first meeting of the General Council of the WTO, the work of the Committee on Trade and Environment should be carried out by a Sub-Committee of the Preparatory Committee of the World Trade Organization (PCWTO), open to all members of the PCWTO.

To invite the Sub-Committee of the Preparatory Committee, and the Committee on Trade and Environment when it is established, to provide input to the relevant bodies in respect of appropriate arrangements for relations with intergovernmental and non-governmental organizations referred to in Article V of the WTO.

Decision on organizational and financial consequences flowing from implementation of the Agreement Establishing the World Trade Organization.

Ministers:

Recognizing the importance of the role and contribution to international trade of the World Trade Organization (hereinafter referred to as «the WTO»);

Desiring to ensure the efficient functioning of the WTO Secretariat;

Recognizing that implementation of the results of the Uruguay Round will expand the scope and complexity of the duties of the Secretariat and that the resource implications thereof need to be studied;

Recalling the statements made by previous Chairmen of the GATT Contracting Parties and the GATT Council drawing attention to the need to improve the terms and conditions of service, including salaries and pensions, for the professional staff of the Secretariat;

Mindful of the need for the WTO to be competitive in the conditions of service it will offer to its professional staff so as to attract the required expertise;

Noting the proposal of the Director-General that, in setting WTO staff conditions of services, including salaries and pensions, due account be taken of those of the International Monetary Fund and the World Bank;

Noting Article VI of the Agreement establishing the WTO, in particular paragraph 3 thereof empowering the Director-General to appoint the staff of the Secretariat to determine their duties and conditions of service in accordance with regulations adopted by the Ministerial Conference;

Recalling that the mandate of the Preparatory Committee requires it to perform such functions as may be necessary to ensure the efficient operation of the WTO immediately as of the date of its establishment, including the preparation of recommendations for the consideration of the competent body of the WTO, or to the extent necessary, the taking of decisions or, as appropriate, provisional decisions with respect to administrative, budgetary and financial matters assisted by proposals from the Secretariat;

hereby agree that the Preparatory Committee shall consider the organizational changes, resource requirements and staff conditions of service proposed in connection with the establishment of the WTO and the implementation of the Uruguay Round agreements and prepare recommendations and take decisions, to the extent necessary, on the adjustments required.

Decision on the establishment of the preparatory Committee for the World Trade Organization

Ministers:

Having regard to the Agreement Establishing the World Trade Organization (hereinafter referred to as «the WTO Agreement» and «the WTO»); and

Mindful of the desirability of ensuring an orderly transition to the WTO and the efficient operation of the WTO as of the date of entry into force;

hereby agree as follows:

1 - A Preparatory Committee for the WTO (hereinafter referred to as «Committee») is hereby established. Mr. P.D. Sutherland in his personal capacity is appointed Chairman of the Committee.

2 - The Committee shall be open for membership to all Signatories of the Final Act of the Uruguay Round of Multilateral Trade Negotiations and to any contracting party eligible to become an original member of the WTO in accordance with Article XI of the WTO Agreement.

3 - A Sub-Committee on Budget, Finance and Administration, to be chaired by the Chairman of the GATT Contracting Parties, and a Sub-Committee on Services responsible for preparatory work on GATS matters are also established. The Committee may establish additional sub-committees as appropriate. Membership of the Sub-Committees shall be open to all members of the Committee. The Committee shall establish its own procedures and those of its sub-committees.

4 - The Committee will make all its decisions by consensus.

5 - Only those members of the Committee that are GATT contracting parties eligible to become original Members of the WTO in accordance with Articles XI and XIV of the WTO Agreement may participate in the decision-making of the Committee.

6 - The Committee and its sub-committees shall be serviced by the GATT Secretariat.

7 - The Committee shall cease to exist upon the entry into force of the WTO Agreement, at which time it will forward its records and recommendations to the WTO.

8 - The Committee shall perform such functions as may be necessary to ensure the efficient operation of the WTO immediately as of the date of its establishment, including the functions set out below:

a) Administrative, budgetary and financial matters. - To prepare recommendations for the consideration of the competent body of the WTO, or, to the extent necessary, take decisions or, as appropriate, provisional decisions in advance of the establishment of the WTO, with respect to the recommendations submitted to it by the Chairman of the Sub-Committee on Budget, Finance and Administration referred to in paragraph 3 above, in cooperation with the Chairman of the GATT Committee on Budget, Finance and Administration, assisted by proposals from the Secretariat on:

i) The headquarters agreement provided for in Article VIII, 5, of the WTO Agreement;

ii) Financial regulations, including guidelines for the assessment of WTO members' budget contributions, in accordance with the criteria set out in Article VII of the WTO Agreement;

iii) The budget estimates for the first year of operation of the WTO;

iv) The transfer of the property, including financial assets, of the ICITO/GATT to the WTO;

v) The transfer and the terms and conditions of the transfer of the GATT staff to the WTO Secretariat; and

vi) The relationship between the International Trade Centre and the WTO;

b) Institutional, procedural and legal matters:

i) To carry out the examination of and approve the schedules submitted to it in accordance with the «Decision on Acceptance of and Accession to the Agreement Establishing the World Trade Organization» and to propose terms of accession in accordance with paragraph 2 of that Decision;

ii) To make proposals concerning terms of reference for the bodies of the WTO, in particular those established in Article IV of the WTO Agreement, and the rules of procedure which they are called upon to establish for themselves, bearing in mind paragraph 1 of Article XVI;

iii) To make recommendations to the General Council of the WTO concerning the appropriate arrangements with respect to relations with other organizations referred to in Article V of the WTO Agreement; and

iv) To prepare and submit a report on its activities to the WTO;

c) Matters related to the entry into force of the WTO Agreement and to the activities of the WTO within its scope and functions:

i) To convene and prepare the Implementation Conference;

ii) To initiate the work programme arising from the Uruguay Round results as set out in the Final Act, such as overseeing, in the Sub-Committee on Services referred to in paragraph 3 above, negotiations in specific services sectors, and also to undertake work resulting from Decisions of the Marrakesh meeting;

iii) To discuss suggestions for the inclusion of additional items on the agenda of the WTO's work programme;

iv) To make proposals concerning the composition of the Textiles Monitoring Body in accordance with the criteria set out in Article 8 of the Agreement on Textiles and Clothing; and

v) To convene the first meeting of the Ministerial Conference or the General Council of the WTO, whichever meets first, and to prepare the provisional agenda thereof.

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 111 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.

Transfers of information and processing of information

8 - No Member shall lake 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.

Temporary entry of personnel

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) Specialists in the operation of the financial service supplier.

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 self-regulatory 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.

THE GENERAL AGREEMENT ON TARIFFS AND TRADE (GATT 1947)

This Appendix contains the complete text of the General Agreement together with all the amendments which became effective since its entry into force. For the convenience of the reader, asterisks mark the portions of the text which should be read in conjunction with notes and supplementary provisions in Annex I of the Agreement.

THE GENERAL AGREEMENT ON TARIFFS AND TRADE

The Governments of the Commonwealth of Australia, the Kingdom of Belgium, the United States of Brazil, Burma, Canada, Ceylon, the Republic of Chile, the Republic of China, the Republic of Cuba, the Czechoslovak Republic, the French Republic, India, Lebanon, the Grand-Duchy of Luxemburg, the Kingdom of the Netherlands, New Zealand, the Kingdom of Norway, Pakistan, Southern Rhodesia, Syria, the Union of South Africa, the United Kingdom of Great Britain and Northern Ireland, and the United States of America:

have through their Representatives agreed as follows:

PART I

Article I

General most-favoured-nation treatment

1 - With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of Article III *, any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.

2 - The provisions of paragraph 1 of this Article shall not require the elimination of any preferences in respect of import duties or charges which do not exceed the levels provided for in paragraph 4 of this Article and which fall within the following descriptions:

a) Preferences in force exclusively between two or more of the territories listed in Annex A, subject to the conditions set forth therein;

b) Preferences in force exclusively between two or more territories which on July 1, 1939, were connected by common sovereignty or relations of protection or suzerainty and which are listed in Annexes B, C and D, subject to the conditions set forth therein;

c) Preferences in force exclusively between the United States of America and the Republic of Cuba;

d) Preferences in force exclusively between neighbouring countries listed in Annexes E and F.

3 - The provisions of paragraph 1 shall not apply to preferences between the countries formerly a part of the Ottoman Empire and detached from it on July 24, 1923, provided such preferences are approved under paragraph 5(ver nota 1) of Article XXV, which shall be applied in this respect in the light of paragraph 1 of Article XXIX.

4 - The margin of preference * on any product in respect of which a preference is permitted under paragraph 2 of this Article but is not specifically set forth as a maximum margin of preference in the appropriate Schedule annexed to this Agreement shall not exceed:

a) In respect of duties or charges on any product described in such Schedule, the difference between the most-favoured-nation and preferential rates provided for therein; if no preferential rate is provided for, the preferential rate shall for the purposes of this paragraph be taken to be that in force on April 10, 1947, and, if no most-favoured-nation rate is provided for, the margin shall not exceed the difference between the most-favoured-nation and preferential rates existing on April 10, 1947;

b) In respect of duties or charges on any product not described in the appropriate Schedule, the difference between the most-favoured-nation and preferential rates existing on April 10, 1947.

In the case of the contracting parties named in Annex G, the date of April 10, 1947, referred to in subparagraph a) and b) of this paragraph shall be replaced by the respective dates set forth in that Annex.

(nota 1) The authentic text erroneously reads «subparagraph 5, a)».

Article II

Schedules of concessions

1 - a) Each contracting party shall accord to the commerce of the other contracting parties treatment no less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to this Agreement.

b) The products described in Part I of the Schedule relating to any contracting party, which are the products of territories of other contracting parties, shall, on their importation into the territory to which the Schedule relates, and subject to the terms, conditions or qualifications set forth in that Schedule, be exempt from ordinary customs duties in excess of those set forth and provided therein. Such products shall also be exempt from all other duties or charges of any kind imposed on or in connection with the importation in excess of those imposed on the date of this Agreement or those directly and mandatorily required to be imposed thereafter by legislation in force in the importing territory on that date.

c) The products described in Part II of the Schedule relating to any contracting party which are the products of territories entitled under Article I to receive preferential treatment upon importation into the territory to which the Schedule relates shall, on their importation into such territory, and subject to the terms, conditions or qualifications set forth in that Schedule, be exempt from ordinary customs duties in excess of those set forth and provided for in Part II of that Schedule. Such products shall also be exempt from all other duties or charges of any kind imposed on or in connection with importation in excess of those imposed on the date of this Agreement or those directly or mandatorily required to be imposed thereafter by legislation in force in the importing territory on that date. Nothing in this Article shall prevent any contracting party from maintaining its requirements existing on the date of this Agreement as to the eligibility of goods for entry at preferential rates of duty.

2 - Nothing in this Article shall prevent any contracting party from imposing at any time on the importation of any product:

a) A charge equivalent to an internal tax imposed consistently with the provisions of paragraph 2 of Article III * in respect of the like domestic product or in respect of an article from which the imported product has been manufactured or produced in whole or in part;

b) Any anti-dumping or countervailing duty applied consistently with the provisions of Article VI *;

c) Fees or other charges commensurate with the cost of services rendered.

3 - No contracting party shall alter its method of determining dutiable value or of converting currencies so as to impair the value of any of the concessions provided for in the appropriate Schedule annexed to this Agreement.

4 - If any contracting party establishes, maintains or authorizes, formally or in effect, a monopoly of the importation of any product described in the appropriate Schedule annexed to this Agreement, such monopoly shall not, except as provided for in that Schedule or as otherwise agreed between the parties which initially negotiated the concession, operate so as to afford protection on the average in excess of the amount of protection provided for in that Schedule. The provisions of this paragraph shall not limit the use by contracting parties of any form of assistance to domestic producers permitted by other provisions of this Agreement *.

5 - If any contracting party considers that a product is not receiving from another contracting party the treatment which the first contracting party believes to have been contemplated by a concession provided for in the appropriate Schedule annexed to this Agreement, it shall bring the matter directly to the attention of the other contracting party. If the latter agrees that the treatment contemplated was that claimed by the first contracting party, but declares that such treatment cannot be accorded because a court or other proper authority has ruled to the effect that the product involved cannot be classified under the tariff laws of such contracting party so as to permit the treatment contemplated in this Agreement, the two contracting parties, together with any other contracting parties substantially interested, shall enter promptly into further negotiations with a view to a compensatory adjustment of the matter.

6 - a) The specific duties and charges included in the Schedules relating to contracting parties members of the International Monetary Fund, and margins of preference in specific duties and charges maintained by such contracting parties, are expressed in the appropriate currency at the par value accepted or provisionally recognized by the Fund at the date of this Agreement. Accordingly, in case this par value is reduced consistently with the Articles of Agreement of the International Monetary Fund by more than twenty per centum, such specific duties and charges and margins of preference may be adjusted to take account of such reduction; provided that the Contracting Parties (i. e., the contracting parties acting jointly as provided for in Article XXV) concur that such adjustments will not impair the value of the concessions provided for in the appropriate Schedule or elsewhere in this Agreement, due account being taken of all factors which may influence the need for, or urgency of, such adjustments.

b) Similar provisions shall apply to any contracting party not a member of the Fund, as from the date on which such contracting party becomes a member of the Fund or enters into a special exchange agreement in pursuance of Article XV.

7 - The Schedules annexed to this Agreement are hereby made an integral part of Part I of this Agreement.

PART II

Article III *

National treatment on internal taxation and regulation

1 - The contracting parties recognize that internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products, and internal quantitative regulations requiring the mixture, processing or use of products in specified amounts or proportions, should not be applied to imported or domestic products so as to afford protection to domestic production *.

2 - The products of the territory of any contracting party imported into the territory of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like domestic products. Moreover, no contracting party shall otherwise apply internal taxes or other internal charges to imported or domestic products in a manner contrary to the principles set forth in paragraph 1 *.

3 - With respect to any existing internal tax which is inconsistent with the provisions of paragraph 2, but which is specifically authorized under a trade agreement, in force on April 10, 1947, in which the import duty on the taxed product is bound against increase, the contracting party imposing the tax shall be free to postpone the application of the provisions of paragraph 2 to such tax until such time as it can obtain release from the obligations of such trade agreement in order to permit the increase of such duty to the extent necessary to compensate for the elimination of the protective element of the tax.

4 - The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use. The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product.

5 - No contracting party shall establish or maintain any internal quantitative regulation relating to the mixture, processing or use of products in specified amounts or proportions which requires, directly or indirectly, that any specified amount or proportion of any product which is the subject of the regulation must be supplied from domestic sources. Moreover, no contracting party shall otherwise apply internal quantitative regulations in a manner contrary to the principles set forth in paragraph 1 *.

6 - The provisions of paragraph 5 shall not apply to any internal quantitative regulation in force in the territory of any contracting party on July 1, 1939, April 10, 1947, or March 24, 1948, at the option of that contracting party; provided that any such regulation which is contrary to the provisions of paragraph 5 shall not be modified to the detriment of imports and shall be treated as a customs duty for the purpose of negotiation.

7 - No internal quantitative regulation relating to the mixture, processing or use of products in specified amounts or proportions shall be applied in such a manner as to allocate any such amount or proportion among external sources of supply.

8 - a) The provisions of this Article shall not apply to laws, regulations or requirements governing the procurement by governmental agencies of products purchased for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods for commercial sale.

b) The provisions of this Article shall not prevent the payment of subsidies exclusively to domestic producers, including payments to domestic producers derived from the proceeds of internal taxes or charges applied consistently with the provisions of this Article and subsidies effected through governmental purchases of domestic products.

9 - The contracting parties recognize that internal maximum price control measures, even though conforming to the other provisions of this Article, can have effects prejudicial to the interests of contracting parties supplying imported products. Accordingly, contracting parties applying such measures shall take account of the interests of exporting contracting parties with a view to avoiding to the fullest practicable extent such prejudicial effects.

10 - The provisions of this Article shall not prevent any contracting party from establishing or maintaining internal quantitative regulations relating to exposed cinematograph films and meeting the requirements of Article IV.

Article IV

Special provisions relating to cinematograph films

If any contracting party establishes or maintains internal quantitative regulations relating to exposed cinematograph films, such regulations shall take the form of screen quotas which shall conform to the following requirements:

a) Screen quotas may require the exhibition of cinematograph films of national origin during a specified minimum proportion of the total screen time actually utilized, over a specified period of not less than one year, in the commercial exhibition of all films of whatever origin, and shall be computed on the basis of screen time per theatre per year or the equivalent thereof;

b) With the exception of screen time reserved for films of national origin under a screen quota, screen time including that released by administrative action from screen time reserved for films of national origin, shall not be allocated formally or in effect among sources of supply;

c) Notwithstanding the provisions of subparagraph b) of this Article, any contracting party may maintain screen quotas conforming to the requirements of subparagraph a) of this Article which reserve a minimum proportion of screen time for films of a specified origin other than that of the contracting party imposing such screen quotas; provided that no such minimum proportion of screen time shall be increased above the level in effect on April 10, 1947;

d) Screen quotas shall be subject to negotiation for their limitation, liberalization or elimination.

Article V

Freedom of transit

1 - Goods (including baggage), and also vessels and other means of transport, shall be deemed to be in transit across the territory of a contracting party when the passage across such territory, with or without trans-shipment, warehousing, breaking bulk, or change in the mode of transport, is only a portion of a complete journey beginning and terminating beyond the frontier of the contracting party across whose territory the traffic passes. Traffic of this nature is termed in this article «traffic in transit».

2 - There shall be freedom of transit through the territory of each contracting party, via the routes most convenient for international transit, for traffic in transit to or from the territory of other contracting parties. No distinction shall be made which is based on the flag of vessels, the place of origin, departure. entry, exit or destination, or on any circumstances relating to the ownership of goods, of vessels or of other means of transport.

3 - Any contracting party may require that traffic in transit through its territory be entered at the proper custom house, but, except in cases of failure to comply with applicable customs laws and regulations, such traffic coming from or going to the territory of other contracting parties shall not be subject to any unnecessary delays or restrictions and shall be exempt from customs duties and from all transit duties or other charges imposed in respect of transit, except charges for transportation or those commensurate with administrative expenses entailed by transit or with the cost of services rendered.

4 - All charges and regulations imposed by contracting parties on traffic in transit to or from the territories of other contracting parties shall be reasonable, having regard to the conditions of the traffic.

5 - With respect to all charges, regulations and formalities in connection with transit, each contracting party shall accord to traffic in transit to or from the territory of any other contracting party treatment no less favourable than the treatment accorded to traffic in transit to or from any third country *.

6 - Each contracting party shall accord to products which have been in transit through the territory of any other contracting party treatment no less favourable than that which would have been accorded to such products had they been transported from their place of origin to their destination without going through the territory of such other contracting party. Any contracting party shall, however, be free to maintain its requirements of direct consignment existing on the date of this Agreement, in respect of any goods in regard to which such direct consignment is a requisite condition of eligibility for entry of the goods at preferential rates of duty or has relation to the contracting party's prescribed method of valuation for duty purposes.

7 - The provisions of this Article shall not apply to the operation of aircraft in transit, but shall apply to air transit of goods (including baggage).

Article VI

Anti-dumping and countervailing duties

1 - The contracting parties recognize that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry. For the purposes of this Article, a product is to be considered as being introduced into the commerce of an importing country at less than its normal value, if the price of the product exported from one country to another:

a) Is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country; or

b) In the absence of such domestic price, is less than either:

i) The highest comparable price for the like product for export to any third country in the ordinary course of trade; or

ii) The cost of production of the product in the country of origin plus a reasonable addition for selling cost and profit.

Due allowance shall be made in each case for differences in conditions and terms of sale, for differences in taxation, and for other differences affecting price comparability *.

2 - In order to offset or prevent dumping, a contracting party may levy on any dumped product an anti-dumping duty not greater in amount than the margin of dumping in respect of such product. For the purposes of this Article, the margin of dumping is the price difference determined in accordance with the provisions of paragraph 1 *.

3 - No countervailing duty shall be levied on any product of the territory of any contracting party imported into the territory of another contracting party in excess of an amount equal to the estimated bounty or subsidy determined to have been granted, directly or indirectly, on the manufacture, production or export of such product in the country of origin or exportation, including any special subsidy to the transportation of a particular product. The term «countervailing duty» shall be understood to mean a special duty levied for the purpose of offsetting any bounty or subsidy bestowed, directly, or indirectly, upon the manufacture, production or export of any merchandise *.

4 - No product of the territory of any contracting party imported into the territory of any other contracting party shall be subject to anti-dumping or countervailing duty by reason of the exemption of such product from duties or taxes borne by the like product when destined for consumption in the country of origin or exportation, or by reason of the refund of such duties or taxes.

5 - No product of the territory of any contracting party imported into the territory of any other contracting party shall be subject to both anti-dumping and countervailing duties to compensate for the same situation of dumping or export subsidization.

6 - a) No contracting party shall levy any anti-dumping or countervailing duty on the importation of any product of the territory of another contracting party unless it determines that the effect of the dumping or subsidization, as the case may be, is such as to cause or threaten material injury to an established domestic industry, or is such as to retard materially the establishment of a domestic industry.

b) The Contracting Parties may waive the requirement of subparagraph a) of this paragraph so as to permit a contracting party to levy an anti-dumping or countervailing duty on the importation of any product for the purpose of offsetting dumping or subsidization which causes or threatens material injury to an industry in the territory of another contracting party exporting the product concerned to the territory of the importing contracting party. The Contracting Parties shall waive the requirements of subparagraph a) of this paragraph, so as to permit the levying of a countervailing duty, in cases in which they find that a subsidy is causing or threatening material injury to an industry in the territory of another contracting party exporting the product concerned to the territory of the importing contracting party *.

c) In exceptional circumstances, however, where delay might cause damage which would be difficult to repair, a contracting party may levy a countervailing duty for the purpose referred to in subparagraph b) of this paragraph without the prior approval of the Contracting Parties; provided that such action shall be reported immediately to the Contracting Parties and that the countervailing duty shall be withdrawn promptly if the Contracting Parties disapprove.

7 - A system for the stabilization of the domestic price or of the return to domestic producers of a primary commodity, independently of the movements of export prices, which results at times in the sale of the commodity for export at a price lower than the comparable price charged for the like commodity to buyers in the domestic market, shall be presumed not to result in material injury within the meaning of paragraph 6 if it is determined by consultation among the contracting parties substantially interested in the commodity concerned that:

a) The system has also resulted in the sale of the commodity for export at a price higher than the comparable price charged for the like commodity to buyers in the domestic market; and

b) The system is so operated, either because of the effective regulation of production, or otherwise, as not to stimulate exports unduly or otherwise seriously prejudice the interests of other contracting parties.

Article VII

Valuation for customs purposes

1 - The contracting parties recognize the validity of the general principles of valuation set forth in the following paragraphs of this Article, and they undertake to give effect to such principles, in respect of all products subject to duties or other charges * or restrictions on importation and exportation based upon or regulated in any manner by value. Moreover, they shall, upon a request by another contracting party, review the operation of any of their laws or regulations relating to value for customs purposes in the light of these principles. The Contracting Parties may request from contracting parties reports on steps taken by them in pursuance of the provisions of this Article.

2 - a) The value for customs purposes of imported merchandise should be based on the actual value of the imported merchandise on which duty is assessed, or of like merchandise, and should not be based on the value of merchandise of national origin or on arbitrary or fictitious values *.

b) «Actual value» should be the price at which, at a time and place determined by the legislation of the country of importation, such or like merchandise is sold or offered for sale in the ordinary course of trade under fully competitive conditions. To the extent to which the price of such or like merchandise is governed by the quantity in a particular transaction, the price to be considered should uniformly be related to either i) comparable quantities, or ii) quantities not less favourable to importers than those in which the greater volume of the merchandise is sold in the trade between the countries of exportation and importation *.

c) When the actual value is not ascertainable in accordance with subparagraph b) of this paragraph, the value for customs purposes should be based on the nearest ascertainable equivalent of such value *.

3 - The value for customs purposes of any imported product should not include the amount of any internal tax, applicable within the country of origin or export, from which the imported product has been exempted or has been or will be relieved by means of refund.

4 - a) Except as otherwise provided for in this paragraph, where it is necessary for the purposes of paragraph 2 of this Article for a contracting party to convert into its own currency a price expressed in the currency of another country, the conversion rate of exchange to be used shall be based, for each currency involved, on the par value as established pursuant to the Articles of Agreement of the International Monetary Fund or on the rate of exchange recognized by the Fund, or on the par value established in accordance with a special exchange agreement entered into pursuant to Article XV of this Agreement.

b) Where no such established par value and no such recognized rate of exchange exist, the conversion rate shall reflect effectively the current value of such currency in commercial transactions.

c) The Contracting Parties, in agreement with the International Monetary Fund, shall formulate rules governing the conversion by contracting parties of any foreign currency in respect of which multiple rates of exchange are maintained consistently with the Articles of Agreement of the International Monetary Fund. Any contracting party may apply such rules in respect of such foreign currencies for the purposes of paragraph 2 of this Article as an alternative to the use of par values. Until such rules are adopted by the Contracting Parties, any contracting party may employ, in respect of any such foreign currency, rules of conversion for the purposes of paragraph 2 of this Article which are designed to reflect effectively the value of such foreign currency in commercial transactions.

d) Nothing in this paragraph shall be construed to require any contracting party to alter the method of converting currencies for customs purposes which is applicable in its territory on the date of this Agreement, if such alteration would have the effect of increasing generally the amounts of duty payable.

5 - The bases and methods for determining the value of products subject to duties or other charges or restrictions based upon or regulated in any manner by value should be stable and should be given sufficient publicity to enable traders to estimate, with a reasonable degree of certainty, the value for customs purposes.

Article VIII

Fees and formalities connected with importation and exportation *

1 - a) All fees and charges of whatever character (other than import and export duties and other than taxes within the purview of Article III) imposed by contracting parties on or in connection with importation or exportation shall be limited in amount to the approximate cost of services rendered and shall not represent an indirect protection to domestic products or a taxation of imports or exports for fiscal purposes.

b) The contracting parties recognize the need for reducing the number and diversity of fees and charges referred to in subparagraph a).

c) The contracting parties also recognize the need for minimizing the incidence and complexity of import and export formalities and for decreasing and simplifying import and export documentation requirements *.

2 - A contracting party shall, upon request by another contracting party or by the Contracting Parties, review the operation of its laws and regulations in the light of the provisions of this Article.

3 - No contracting party shall impose substantial penalties for minor breaches of customs regulations or procedural requirements. In particular. no penalty in respect of any omission or mistake in customs documentation which is easily rectifiable and obviously made without fraudulent intent or gross negligence shall be greater than necessary to serve merely as a warning.

4 - The provisions of this Article shall extend to fees, charges, formalities and requirements imposed by governmental authorities in connection with importation and exportation, including those relating to:

a) Consular transactions, such as consular invoices and certificates;

b) Quantitative restrictions;

c) Licensing;

d) Exchange control;

e) Statistical services;

f) Documents, documentation and certification;

g) Analysis and inspection; and

h) Quarantine, sanitation and fumigation.

Article IX

Marks of origin

1 - Each contracting party shall accord to the products of the territories of other contracting parties treatment with regard to marking requirements no less favourable than the treatment accorded to like products of any third country.

2 - The contracting parties recognize that, in adopting and enforcing laws and regulations relating to marks of origin, the difficulties and inconveniences which such measures may cause to the commerce and industry of exporting countries should be reduced to a minimum, due regard being had to the necessity of protecting consumers against fraudulent or misleading indications.

3 - Whenever it is administratively practicable to do so, contracting parties should permit required marks of origin to be affixed at the time of importation.

4 - The laws and regulations of contracting parties relating to the marking of imported products shall be such as to permit compliance without seriously damaging the products, or materially reducing their value, or unreasonably increasing their cost.

5 - As a general rule, no special duty or penalty should be imposed by any contracting party for failure to comply with marking requirements prior to importation unless corrective marking is unreasonably delayed or deceptive marks have been affixed or the required marking has been intentionally omitted.

6 - The contracting parties shall co-operate with each other with a view to preventing the use of trade names in such manner as to misrepresent the true origin of a product, to the detriment of such distinctive regional or geographical names of products of the territory of a contracting party as are protected by its legislation. Each contracting party shall accord full and sympathetic consideration to such requests or representations as may be made by any other contracting party regarding the application of the undertaking set forth in the preceding sentence to names of products which have been communicated to it by the other contracting party.

Article X

Publication and administration of trade regulations

1 - Laws, regulations, judicial decisions and administrative rulings of general application, made effective by any contracting party, pertaining to the classification or the valuation of products for customs purposes, or to rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports or exports or on the transfer of payments therefor, or affecting their sale, distribution, transportation, insurance, warehousing inspection, exhibition, processing, mixing or other use, shall be published promptly in such a manner as to enable governments and traders to become acquainted with them. Agreements affecting international trade policy which are in force between the government or a governmental agency of any contracting party and the government or governmental agency of any other contracting party shall also be published. The provisions of this paragraph shall not require any contracting party 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.

2 - No measure of general application taken by any contracting party effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments therefor, shall be enforced before such measure has been officially published.

3 - a) Each contracting party shall administer in a uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the kind described in paragraph 1 of this Article.

b) Each contracting party shall maintain, or institute as soon as practicable, judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review and correction of administrative action relating to customs matters. Such tribunals or procedures shall be independent of the agencies entrusted with administrative enforcement and their decisions shall be implemented by, and shall govern the practice of, such agencies unless an appeal is lodged with a court or tribunal of superior jurisdiction within the time prescribed for appeals to be lodged by importers; provided that the central administration of such agency may take steps to obtain a review of the matter in another proceeding if there is good cause to believe that the decision is inconsistent with established principles of law or the actual facts.

c) The provisions of subparagraph b) of this paragraph shall not require the elimination or substitution of procedures in force in the territory of a contracting party on the date of this Agreement which in fact provide for an objective and impartial review of administrative action even though such procedures are not fully or formally independent of the agencies entrusted with administrative enforcement. Any contracting party employing such procedures shall, upon request, furnish the Contracting Parties with full information thereon in order that they may determine whether such procedures conform to the requirements of this subparagraph.

Article XI*

General elimination of quantitative restrictions

1 - No prohibitions or restrictions other than duties, taxes or other charges, whether made effective thorough quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.

2 - The provisions of paragraph ] of this Article shall not extend to the following:

a) Export prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of foodstuffs or other products essential to the exporting contracting party;

b) Import and export prohibitions or restrictions necessary to the application of standards or regulations for the classification, grading or marketing of commodities in international trade;

c) Import restrictions on any agricultural or fisheries product, imported in any form *, necessary to the enforcement of governmental measures which operate:

i) To restrict the quantities of the like domestic product permitted to be marketed or produced, or, if there is no substantial domestic production of the like product, of a domestic product for which the imported product can be directly substituted; or

ii) To remove a temporary surplus of the like domestic product, or, if there is no substantial domestic production of the like product, of a domestic product for which the imported product can be directly substituted, by making the surplus available to certain groups of domestic consumers free of charge or at prices below the current market level; or

iii) To restrict the quantities permitted to be produced of any animal product the production of which is directly dependent, wholly or mainly, on the imported commodity, if the domestic production of that commodity is relatively negligible.

Any contracting party applying restrictions on the importation of any product pursuant to subparagraph c) of this paragraph shall give public notice of the total quantity or value of the product permitted to be imported during a specified future period and of any change in such quantity or value. Moreover, any restrictions applied under i) above shall not be such as will reduce the total of imports relative to the total of domestic production, as compared with the proportion which might reasonably be expected to rule between the two in the absence of restrictions. In determining this proportion, the contracting party shall pay due regard to the proportion prevailing during a previous representative period and to any special factors * which may have affected or may be affecting the trade in the product concerned.

Article XII *

Restrictions to safeguard the balance of payments

1 - Notwithstanding the provisions of paragraph 1 of Article XI, any contracting party, in order to safeguard its external financial position and its balance of payments, may restrict the quantity or value of merchandise permitted to be imported, subject to the provisions of the following paragraphs of this Article.

2 - a) Import restrictions instituted, maintained or intensified by a contracting party under this Article shall not exceed those necessary:

i) To forestall the imminent threat of, or to stop, a serious decline in its monetary reserves; or

ii) In the case of a contracting party with very low monetary reserves, to achieve a reasonable rate of increase in its reserves.

Due regard shall be paid in either case to any special factors which may be affecting the reserves of such contracting party or its need for reserves, including, where special external credits or other resources are available to it, the need to provide for the appropriate use of such credits or resources.

b) Contracting parties applying restrictions under sub-paragraph a) of this paragraph shall progressively relax them as such conditions improve, maintaining them only to the extent that the conditions specified in that sub-paragraph still justify their application. They shall eliminate the restrictions when conditions would no longer justify their institution or maintenance under that subparagraph.

3 - a) Contracting parties undertake, in carrying out their domestic policies, to pay due regard to the need for maintaining or restoring equilibrium in their balance of payments on a sound and lasting basis and to the desirability of avoiding an uneconomic employment of productive resources. They recognize that, in order to achieve these ends, it is desirable so far as possible to adopt measures which expand rather than contract international trade.

b) Contracting parties applying restrictions under this Article may determine the incidence of the restrictions on imports of different products or classes of products in such a way as to give priority to the importation of those products which are more essential.

c) Contracting parties applying restrictions under this Article undertake:

i) To avoid unnecessary damage to the commercial or economic interests of any other contracting party *;

ii) Not to apply restrictions so as to prevent unreasonably the importation of any description of goods in minimum commercial quantities the exclusion of which would impair regular channels of trade; and

iii) Not to apply restrictions which would prevent the importations of commercial samples or prevent compliance with patent, trade mark, copyright, or similar procedures.

d) The contracting parties recognize that, as a result of domestic policies directed towards the achievement and maintenance of full and productive employment or towards the development of economic resources, a contracting party may experience a high level of demand for imports involving a threat to its monetary reserves of the sort referred to in paragraph 2, a), of this Article. Accordingly, a contracting party otherwise complying with the provisions of this Article shall not be required to withdraw or modify restrictions on the ground that a change in those policies would render unnecessary restrictions which it is applying under this Article.

4 - a) Any contracting party applying new restrictions or raising the general level of its existing restrictions by a substantial intensification of the measures applied under this Article shall immediately after instituting or intensifying such restrictions (or, in circumstances in which prior consultation is practicable, before doing so) consult with the Contracting Parties as to the nature of its balance of payments difficulties, alternative corrective measures which may be available, and the possible effect of the restrictions on the economies of other contracting parties.

b) On a date to be determined by them *, the Contracting Parties shall review all restrictions still applied under this Article on that date. Beginning one year after that date, contracting parties applying import restrictions under this Article shall enter into consultations of the type provided for in subparagraph a) of this paragraph with the Contracting Parties annually.

c):

i) If, in the course of consultations with a contracting party under subparagraph a) or b) above, the Contracting Parties find that the restrictions are not consistent with provisions of this Article or with those of Article XIII (subject to the provisions of Article XIV), they shall indicate the nature of the inconsistency and may advise that the restrictions be suitably modified.

ii) If, however, as a result of the consultations, the Contracting Parties determine that the restrictions are being applied in a manner involving an inconsistency of a serious nature with the provisions of this Article or with those of Article XIII (subject to the provisions of Article XIV) and that damage to the trade of any contracting party is caused or threatened thereby, they shall so inform the contracting party applying the restrictions and shall make appropriate recommendations for securing conformity with such provisions within the specified period of time. If such contracting party does not comply with these recommendations within the specified period, the Contracting Parties may release any contracting party the trade of which is adversely affected by the restrictions from such obligations under this Agreement towards the contracting party applying the restrictions as they determine to be appropriate in the circumstances.

d) The Contracting Parties shall invite any contracting party which is applying restrictions under this Article to enter into consultations with them at the request of any contracting party which can establish a prima facie case that the restrictions are inconsistent with the provisions of this Article or with those of Article XIII (subject to the provisions of Article XIV) and that its trade is adversely affected thereby. However, no such invitation shall be issued unless the Contracting Parties have ascertained that direct discussions between the contracting parties concerned have not been successful. If, as a result of the consultations with the Contracting Parties, no agreement is reached and they determine that the restrictions are being applied inconsistently with such provisions, and that damage to the trade of the contracting party initiating the procedure is caused or threatened thereby, they shall recommend the withdrawal or modification of the restrictions. If the restrictions are not withdrawn or modified within such time as the Contracting Parties may prescribe, they may release the contracting party initiating the procedure from such obligations under this Agreement towards the contracting party applying the restrictions as they determine to be appropriate in the circumstances.

e) In proceeding under this paragraph, the Contracting Parties shall have due regard to any special external factors adversely affecting the export trade of the contracting party applying the restrictions *.

f) Determinations under this paragraph shall be rendered expeditiously and, if possible, within sixty days of the initiation of the consultations.

5 - If there is a persistent and widespread application of import restrictions under this Article, indicating the existence of a general disequilibrium which is restricting international trade, the Contracting Parties shall initiate discussions to consider whether other measures might be taken, either by those contracting parties the balance of payments of which are under pressure or by those the balance of payments of which are tending to be exceptionally favourable, or by any appropriate intergovernmental organization, to remove the underlying causes of the disequilibrium. On the invitation of the Contracting Parties, contracting parties shall participate in such discussions.

Article XIII *

Non-discriminatory administration of quantitative restrictions

1 - No prohibition or restriction shall be applied by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation of any product destined for the territory of any other contracting party, unless the importation of the like product of all third countries or the exportation of the like product to all third countries is similarly prohibited or restricted.

2 - In applying import restrictions to any product, contracting parties shall aim at a distribution of trade in such product approaching as closely as possible the shares which the various contracting parties might be expected to obtain in the absence of such restrictions and to this end shall observe the following provisions:

a) Wherever practicable, quotas representing the total amount of permitted imports (whether allocated among supplying countries or not) shall be fixed, and notice given of their amount in accordance with paragraph 3, b), of this Article;

b) In cases in which quotas are not practicable, the restrictions may be applied by means of import licences or permits without a quota;

c) Contracting parties shall not, except for purposes of operating quotas allocated in accordance with subparagraph d) of this paragraph, require that import licences or permits be utilized for the importation of the product concerned from a particular country or source;

d) In cases in which a quota is allocated among supplying countries the contracting party applying the restrictions may seek agreement with respect to the allocation of shares in the quota with all other contracting parties having a substantial interest in supplying the product concerned. In cases in which this method is not reasonably practicable, the contracting party concerned shall allot to contracting parties having a substantial interest in supplying the product shares based upon the proportions, supplied by such contracting parties 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. No conditions or formalities shall be imposed which would prevent any contracting party from utilizing fully the share of any such total quantity or value which has been allotted to it, subject to importation being made within any prescribed period to which the quota may relate *.

3 - a) In cases in which import licences are issued in connection with import restrictions, the contracting party applying the restrictions shall provide, upon the request of any contracting party having an interest in the trade in the product concerned, all relevant information concerning the administration of the restrictions, the import licences granted over a recent period and the distribution of such licences among supplying countries; provided that there shall be no obligation to supply information as to the names of importing or supplying enterprises.

b) In the case of import restrictions involving the fixing of quotas, the contracting party applying the restrictions shall give public notice of the total quantity or value of the product or products which will be permited to be imported during a specified future period and of any change in such quantity or value. Any supplies of the product in question which were en route at the time at which public notice was given shall not be excluded from entry; provided that they may be counted so far as practicable, against the quantity permited to be imported in the period in question, and also, where necessary, against the quantities permitted to be imported in the next following period or periods; and provided further that if any contracting party customarily exempts from such restrictions products entered for consumption or withdrawn from warehouse for consumption during a period of thirty days after the day of such public notice, such practice shall be considered full compliance with this subparagraph.

c) In the case of quotas allocated among supplying countries, the contracting party applying the restrictions shall promptly inform all other contracting parties 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 give public notice thereof.

4 - With regard to restrictions applied in accordance with paragraph 2, d), of this Article or under paragraph 2, c), of Article XI, the selection of a representative period for any product and the appraisal of any special factors * affecting the trade in the product shall be made initially by the contracting party applying the restriction; provided that such contracting party shall, upon the request of any other contracting party having a substantial interest in supplying that product or upon the request of the Contracting Parties, consult promptly with the other contracting party or the Contracting Parties regarding the need for an adjustment of the proportion determined or of the base period selected, or for the reappraisal of the special factors involved, or for the elimination of conditions, formalities or any other provisions established unilaterally relating to the allocation of an adequate quota or its unrestricted utilization.

5 - The provisions of this Article shall apply to any tariff quota instituted or maintained by any contracting party, and, in so far as applicable, the principles of this Article shall also extend to export restrictions.

Article XIV *

Exceptions to the rule of non-discrimination

1 - A contracting party which applies restrictions under Article XII or under Section B of Article XVIII may, in the application of such restrictions, deviate from the provisions of Article XIII in a manner having equivalent effect to restrictions on payments and transfers for current international transactions which that contracting party may at that time apply under Article VIII or XIV of the Articles of Agreement of the International Monetary Fund, or under analogous provisions of a special exchange agreement entered into pursuant to paragraph 6 of Article XV *.

2 - A contracting party which is applying import restrictions under Article XII or under Section B of Article XVIII may, with the consent of the Contracting Parties, temporarily deviate from the provisions of Article XIII in respect of a small part of its external trade where the benefits to the contracting party or contracting parties concerned substantially outweigh any injury which may result to the trade of other contracting parties *.

3 - The provisions of Article XIII shall not preclude a group of territories having a common quota in the International Monetary Fund from applying against imports from other countries, but not among themselves, restrictions in accordance with the provisions of Article XII or of Section B of Article XVIII on condition that such restrictions are in all other respects consistent with the provisions of Article XIII.

4 - A contracting party applying import restrictions under Article XII or under Section B of Article XVIII shall not be precluded by Articles XI to XV or Section B of Article XVIII of this Agreement from applying measures to direct its exports in such a manner as to increase its earnings of currencies which it can use without deviation from the provisions of Article XIII.

5 - A contracting party shall not be precluded by Articles XI to XV, inclusive, or by Section B of Article XVIII, of this Agreement from applying quantitative restrictions:

a) Having equivalent effect to exchange restrictions authorized under Section 3, b), of Article VII of the Articles of Agreement of the International Monetary Fund; or

b) Under the preferential arrangements provided for in Annex A of this Agreement, pending the outcome of the negotiations referred to therein.

Article XV

Exchange arrangements

1 - The Contracting Parties shall seek co-operation with the International Monetary Fund to the end that the Contracting Parties and the Fund may pursue a co-ordinated policy with regard to exchange questions within the jurisdiction of the Fund and questions of quantitative restrictions and other trade measures within the jurisdiction of the Contracting Parties.

2 - In all cases in which the Contracting Parties are called upon to consider or deal with problems concerning monetary reserves, balances of payments or foreign exchange arrangements, they shall consult fully with the International Monetary Fund. In such consultations, the Contracting Parties shall accept all findings of statistical and other facts presented by the Fund relating to foreign exchange, monetary reserves and balances of payments, and shall accept the determination of the Fund as to whether action by a contracting party in exchange matters is in accordance with the Articles of Agreement of the International Monetary Fund, or with the terms of a special exchange agreement between that contracting party and the Contracting Parties. The Contracting Parties in reaching their final decision in cases involving the criteria set forth in paragraph 2, a), of Article XII or in paragraph 9 of Article XVIII, shall accept the determination of the Fund as to what constitutes a serious decline in the contracting party's monetary reserves, a very low level of its monetary reserves or a reasonable rate of increase in its monetary reserves, and as to the financial aspects of other matters covered in consultation in such cases.

3 - The Contracting Parties shall seek agreement with the Fund regarding procedures for consultation under paragraph 2 of this Article.

4 - Contracting parties shall not, by exchange action, frustrate * the intent of the provisions of this Agreement, nor, by trade action, the intent of the provisions of the Articles of Agreement of the International Monetary Fund.

5 - If the Contracting Parties consider, at any time, that exchange restrictions on payments and transfers in connection with imports are being applied by a contracting party in a manner inconsistent with the exceptions provided for in this Agreement for quantitative restrictions, they shall report thereon to the Fund.

6 - Any contracting party which is not a member of the Fund shall, within a time to be determined by the Contracting Parties after consultation with the Fund, become a member of the Fund, or, failing that, enter into a special exchange agreement with the Contracting Parties. A contracting party which ceases to be a member of the Fund shall forthwith enter into a special exchange agreement with the Contracting Parties. Any special exchange agreement entered into by a contracting party under this paragraph shall thereupon become part of its obligations under this Agreement.

7 - a) A special exchange agreement between a contracting party and the Contracting Parties under paragraph 6 of this Article shall provide to the satisfaction of the Contracting Parties that the objectives of this Agreement will not be frustrated as a result of action in exchange matters by the contracting party in question.

b) The terms of any such agreement shall not impose obligations on the contracting party in exchange matters generally more restrictive than those imposed by the Articles of Agreement of the International Monetary Fund on members of the Fund.

8 - A contracting party which is not a member of the Fund shall furnish such information within the general scope of section 5 of Article VIII of the Articles of Agreement of the International Monetary Fund as the Contracting Parties may require in order to carry out their functions under this Agreement.

9 - Nothing in this Agreement shall preclude:

a) The use by a contracting party of exchange controls or exchange restrictions in accordance with the Articles of Agreement of the International Monetary Fund or with that contracting party's special exchange agreement with the Contracting Parties; or

b) The use by a contracting party of restrictions or controls in imports or exports, the sole effect of which, additional to the effects permitted under Articles XI, XII, XIII and XIV, is to make effective such exchange controls or exchange restrictions.

Article XVI *

Subsidies

Section A - Subsidies in general

1 - If any contracting party grants or maintains any subsidy, including any form of income or price support, which operates directly or indirectly to increase exports of any product from, or to reduce imports of any product into, its territory, it shall notify the Contracting Parties in writing of the extent and nature of the subsidization, of the estimated effect of the subsidization on the quantity of the affected product or products imported into or exported from its territory and of the circumstances making the subsidization necessary. In any ease in which it is determined that serious prejudice to the interests of any other contracting party is caused or threatened by any such subsidization, the contracting party granting the subsidy shall, upon request, discuss with the other contracting party or parties concerned, or with the Contracting Parties, the possibility of limiting the subsidization.

Section B - Additional provisions on export subsidies *

2 - The contracting parties recognize that the granting by a contracting party of a subsidy on the export of any product may have harmful effects for other contracting parties, both importing and exporting, may cause undue disturbance to their normal commercial interests, and may hinder the achievement of the objectives of this Agreement.

3 - Accordingly, contracting parties should seek to avoid the use of subsidies on the export of primary products. If, however, a contracting party grants directly or indirectly any form of subsidy which operates to increase the export of any primary product from its territory, such subsidy shall not be applied in a manner which results in that contracting party having more than an equitable share of world export trade in that product, account being taken of the shares of the contracting parties in such trade in the product during a previous representative period, and any special factors which may have affected or may be affecting such trade in the product *.

4 - Further, as from 1 January 1958 or the earliest practicable date thereafter, contracting parties shall cease to grant either directly or indirectly any form of subsidy on the export of any product other than a primary product which subsidy results in the sale of such product for export at a price lower than the comparable price charged for the like product to buyers in the domestic market. Until 31 December 1957 no contracting party shall extend the scope of any such subsidization beyond that existing on 1 January 1955 by the introduction of new, or the extension of existing, subsidies *.

5 - The Contracting Parties shall review the operation of the provisions of this Article from time to time with a view to examining its effectiveness, in the light of actual experience, in promoting the objectives of this Agreement and avoiding subsidization seriously prejudicial to the trade or interests of contracting parties.

Article XVII

State trading enterprises

1 * - a) Each contracting party undertakes that if it establishes or maintains a State enterprise, wherever located, or grants to any enterprise, formally or in effect, exclusive or special privileges *, such enterprise shall, in its purchases or sales involving either imports or exports, act in a manner consistent with the general principles of non-discriminatory treatment prescribed in this Agreement for governmental measures affecting imports or exports by private traders.

b) The provisions of subparagraph a) of this paragraph shall be understood to require that such enterprises shall, having due regard to the other provisions of this Agreement, make any such purchases or sales solely in accordance with commercial considerations *, including price, quality, availability, marketability, transportation and other conditions of purchase or sale, and shall afford the enterprises of the other contracting parties adequate opportunity, in accordance with customary business practice, to compete for participation in such purchases or sales.

c) No contracting party shall prevent any enterprise (whether or not an enterprise described in subparagraph a) of this paragraph) under its jurisdiction from acting in accordance with the principles of subparagraphs a) and b) of this paragraph.

2 - The provisions of paragraph 1 of this Article shall not apply to imports of products for immediate or ultimate consumption in governmental use and not otherwise for resale or use in the production of goods * for sale. With respect to such imports, each contracting party shall accord to the trade of the other contracting parties fair and equitable treatment.

3 - The contracting parties recognize that enterprises of the kind described in paragraph 1, a), of this Article might be operated so as to create serious obstacles to trade; thus negotiations on a reciprocal and mutually advantageous basis designed to limit or reduce such obstacles are of importance to the expansion of international trade *.

4 - a) Contracting parties shall notify the Contracting Parties of the products which are imported into or exported from their territories by enterprises of the kind described in paragraph 1, a), of this Article.

b) A contracting party establishing, maintaining or authorizing an import monopoly of a product, which is not the subject of a concession under Article II, shall, on the request of another contracting party having a substantial trade in the product concerned, inform the Contracting Parties of the import mark-up * on the product during a recent representative period, or, when it is not possible to do so, of the price charged on the resale of the product.

c) The Contracting Parties may, at the request of a contracting party which has reason to believe that its interest under this Agreement are being adversely affected by the operations of an enterprise of the kind described in paragraph 1, a), request the contracting party establishing, maintaining or authorizing such enterprise to supply information about its operations related to the carrying out of the provisions of this Agreement.

d) The provisions of this paragraph shall not require any contracting party 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.

Article XVIII *

Governmental assistance to economic development

1 - The contracting parties recognize that the attainment of the objectives of this Agreement will be facilitated by the progressive development of their economies, particularly of those contracting parties the economies of which can only support low standards of living * and are in the early stages of development *.

2 - The contracting parties recognize further that it may be necessary for those contracting parties, in order to implement programmes and policies of economic development designed to raise the general standard of living of their people, to take protective or other measures affecting imports, and that such measures are justified in so far as they facilitate the attainment of the objectives of this Agreement. They agree, therefore, that those contracting parties should enjoy additional facilities to enable them a) to maintain sufficient flexibility in their tariff structure to be able to grant the tariff protection required for the establishment of a particular industry * and b) to apply quantitative restrictions for balance of payments purposes in a manner which takes full account of the continued high level of demand for imports likely to be generated by their programmes of economic development.

3 - The contracting parties recognize finally that, with those additional facilities which are provided for in Sections A and B of this Article, the provisions of this Agreement would normally be sufficient to enable contracting parties to meet the requirements of their economic development. They agree, however, that there may be circumstances where no measure consistent with those provisions is practicable to permit a contracting party in the process of economic development to grant the governmental assistance required to promote the establishment of particular industries * with a view to raising the general standard of living of its people. Special procedures are laid down in Sections C and D of this Article to deal with those cases.

4 - a) Consequently, a contracting party, the economy of which can only support low standards of living * and is in the early stages of development *, shall be free to deviate temporarily from the provisions of the other Articles of this Agreement, as provided in Sections A, B and C of this Article.

b) A contracting party, the economy of which is in the process of development, but which does not come within the scope of subparagraph a) above, may submit applications to the Contracting Parties under Section D of this Article.

5 - The contracting parties recognize that the export earnings of contracting parties, the economies of which are of the type described in paragraph 4, a) and b), above and which depend on exports of a small number of primary commodities, may be seriously reduced by a decline in the sale of such commodities. Accordingly, when the exports of primary commodities by such a contracting party are seriously affected by measures taken by another contracting party, it may have resort to the consultation provisions of Article XXII of this Agreement.

6 - The Contracting Parties shall review annually all measures applied pursuant to the provisions of Sections C and D of this Article.

Section A

7 - a) If a contracting party coming within the scope of paragraph 4, a), of this Article considers it desirable, in order to promote the establishment of a particular industry * with a view to raising the general standard of living of its people, to modify or withdraw a concession included in the appropriate Schedule annexed to this Agreement, it shall notify the Contracting Parties to this effect and enter into negotiations with any contracting party with which such concession was initially negotiated, and with any other contracting party determined by the Contracting Parties to have a substantial interest therein. If agreement is reached between such contracting parties concerned, they shall be free to modify or withdraw concessions under the appropriate Schedules to this Agreement in order to give effect to such agreement, including any compensatory adjustments involved.

b) If agreement is not reached within sixty days after the notification provided for in subparagraph a) above, the contracting party which proposes to modify or withdraw the concession may refer the matter to the Contracting Parties which shall promptly examine it. If they find that the contracting party which proposes to modify or withdraw the concession has made every effort to reach an agreement and that the compensatory adjustment offered by it is adequate, that contracting party shall be free to modify or withdraw the concession if, at the same time, it gives effect to the compensatory adjustment. If the Contracting Parties do not find that the compensation offered by a contracting party proposing to modify or withdraw the concession is adequate, but find that it has made every reasonable effort to offer adequate compensation, that contracting party shall be free to proceed with such modification or withdrawal. If such action is taken, any other contracting party referred to in subparagraph a) above shall be free to modify or withdraw substantially equivalent concessions initially negotiated with the contracting party which has taken the action *.

Section B

8 - The contracting parties recognize that contracting parties coming within the scope of paragraph 4, a), of this Article tend, when they are in rapid process of development, to experience balance of payments difficulties arising mainly from efforts to expand their internal markets as well as from the instability in their terms of trade.

9 - In order to safeguard its external financial position and to ensure a level of reserves adequate for the implementation of its programme of economic development, a contracting party coming within the scope of paragraph 4, a), of this Article may, subject to the provisions of paragraphs 10 to 12, control the general level of its imports by restricting the quantity or value of merchandise permitted to be imported; provided that the import restrictions instituted, maintained or intensified shall not exceed those necessary:

a) To forestall the threat of, or to stop, a serious decline in its monetary reserves; or

b) In the case of a contracting party with inadequate monetary reserves, to achieve a reasonable rate of increase in its reserves.

Due regard shall be paid in either case to any special factors which may be affecting the reserves of the contracting party or its need for reserves, including, where special external credits or other resources are available to it, the need to provide for the appropriate use of such credits or resources.

10 - In applying these restrictions, the contracting party may determine their incidence on imports of different products or classes of products in such a way as to give priority to the importation of those products which are more essential in the light of its policy of economic development; provided that the restrictions are so applied as to avoid unnecessary damage to the commercial or economic interests of any other contracting party and not to prevent unreasonably the importation of any description of goods in minimum commercial quantities the exclusion of which would impair regular channels of trade; and provided further that the restrictions are not so applied as to prevent the importation of commercial samples or to prevent compliance with patent, trade mark, copyright or similar procedures.

11 - In carrying out its domestic policies, the contracting party concerned shall pay due regard to the need for restoring equilibrium in its balance of payments on a sound and lasting basis and to the desirability of assuring an economic employment of productive resources. It shall progressively relax any restrictions applied under this Section as conditions improve, maintaining them only to the extent necessary under the terms of paragraph 9 of this Article and shall eliminate them when conditions no longer justify such maintenance; provided that no contracting party shall be required to withdraw or modify restrictions on the ground that a change in its development policy would render unnecessary the restrictions which it is applying under this Section *.

12 - a) Any contracting party applying new restrictions or raising the general level of its existing restrictions by a substantial intensification of the measures applied under this Section, shall immediately after instituting or intensifying such restrictions (or, in circumstances in which prior consultation is practicable, before doing so) consult with the Contracting Parties as to the nature of its balance of payments difficulties, alternative corrective measures which may be available, and the possible effect of the restrictions on the economies of other contracting parties.

b) On a date to be determined by them * the Contracting Parties shall review all restrictions still applied under this Section on that date. Beginning two years after that date, contracting parties applying restrictions under this Section shall enter into consultations of the type provided for in subparagraph a) above with the Contracting Parties at intervals of approximately, but not less than, two years according to a programme to be drawn up each year by the Contracting Parties; provided that no consultation under this subparagraph shall take place within two years after the conclusion of a consultation of a general nature under any other provision of this paragraph.

c):

i) If, in the course of consultations with a contracting party under subparagraph a) or b) of this paragraph, the Contracting Parties find that the restrictions are not consistent with the provisions of this Section or with those of Article XIII (subject to the provisions of Article XIV), they shall indicate the nature of the inconsistency and may advise that the restrictions be suitably modified;

ii) If, however, as a result of the consultations, the Contracting Parties determine that the restrictions are being applied in a manner involving an inconsistency of a serious nature with the provisions of this Section or with those of Article XIII (subject to the provisions of Article XIV) and that damage to the trade of any contracting party is caused or threatened thereby, they shall so inform the contracting party applying the restrictions and shall make appropriate recommendations for securing conformity with such provisions within a specified period. If such contracting party does not comply with these recommendations within the specified period, the Contracting Parties may release any contracting party the trade of which is adversely affected by the restrictions from such obligations under this Agreement towards the contracting party applying the restrictions as they determine to be appropriate in the circumstances.

d) The Contracting Parties shall invite any contracting party which is applying restrictions under this Section to enter into consultations with them at the request of any contracting party which can establish a prima facie case that the restrictions are inconsistent with the provisions of this Section or with those of Article XIII (subject to the provisions of Article XIV) and that its trade is adversely affected thereby. However, no such invitation shall be issued unless the Contracting Parties have ascertained that direct discussions between the contracting parties concerned have not been successful. If, as a result of the consultations with the Contracting Parties no agreement is reached and they determine that the restrictions are being applied inconsistently with such provisions, and that damage to the trade of the contracting party initiating the procedure is caused or threatened thereby, they shall recommend the withdrawal or modification of the restrictions. If the restrictions are not withdrawn or modified within such time as the Contracting Parties may prescribe, they may release the contracting party initiating the procedure from such obligations under this Agreement towards the contracting party applying the restrictions as they determine to be appropriate in the circumstances.

e) If a contracting party against which action has been taken in accordance with the last sentence of subparagraph c), ii), or d) of this paragraph, finds that the release of obligations authorized by the Contracting Parties adversely affects the operation of its programme and policy of economic development, it shall be free, not later than sixty days after such action is taken, to give written notice to the Executive Secretary (ver nota 2) to the Contracting Parties of its intention to withdraw from this Agreement and such withdrawal shall take effect on the sixtieth day following the day on which the notice is received by him.

f) In proceeding under this paragraph, the Contracting Parties shall have due regard to the factors referred to in paragraph 2 of this Article. Determinations under this paragraph shall be rendered expeditiously and, if possible, within sixty days of the initiation of the consultations.

(nota 2) By the Decision of 23 March 1965, the Contracting Parties changed the title of the head of the GATT secretariat from «Executive Secretary» to «Director-General».

Section C

13 - If a contracting party coming within the scope of paragraph 4, a), of this Article finds that governmental assistance is required to promote the establishment of a particular industry * with a view to raising the general standard of living of its people, but that no measure consistent with the other provisions of this Agreement is practicable to achieve that objective, it may have recourse to the provisions and procedures set out in this Section *.

14 - The contracting party concerned shall notify the Contracting Parties of the special difficulties which it meets in the achievement of the objective outlined in paragraph 13 of this Article and shall indicate the specific measure affecting imports which it proposes to introduce in order to remedy these difficulties. It shall not introduce that measure before the expiration of the time-limit laid down in paragraph 15 or 17, as the case may be, or if the measure affects imports of a product which is the subject of a concession included in the appropriate Schedule annexed to this Agreement, unless it has secured the concurrence of the Contracting Parties in accordance with provisions of paragraph 18; provided that, if the industry receiving assistance has already started production, the contracting party may, after informing the Contracting Parties, take such measures as may be necessary to prevent, during that period, imports of the product or products concerned from increasing substantially above a normal level *.

15 - If, within thirty days of the notification of the measure, the Contracting Parties do not request the contracting party concerned to consult with them *, that contracting party shall be free to deviate from the relevant provisions of the other Articles of this Agreement to the extent necessary to apply the proposed measure.

16 - If it is requested by the Contracting Parties to do so *, the contracting party concerned shall consult with them as to the purpose of the proposed measure, as to alternative measures which may be available under this Agreement, and as to the possible effect of the measure proposed on the commercial and economic interests of other contracting parties. If, as a result of such consultation, the Contracting Parties agree that there is no measure consistent with the other provisions of this Agreement which is practicable in order to achieve the objective outlined in paragraph 13 of this Article, and concur* in the proposed measure, the contracting party concerned shall be released from its obligations under the relevant provisions of the other Articles of this Agreement to the extent necessary to apply that measure.

17 - If, within ninety days after the date of the notification of the proposed measure under paragraph 14 of this Article, the Contracting Parties have not concurred in such measure, the contracting party concerned may introduce the measure proposed after informing the Contracting Parties.

18 - If the proposed measure affects a product which is the subject of a concession included in the appropriate Schedule annexed to this Agreement, the contracting party concerned shall enter into consultations with any other contracting party with which the concession was initially negotiated, and with any other contracting party determined by the Contracting Parties to have a substantial interest therein. The Contracting Parties shall concur * in the measure if they agree that there is no measure consistent with the other provisions of this Agreement which is practicable in order to achieve the objective set forth in paragraph 13 of this Article, and if they are satisfied:

a) That agreement has been reached with such other contracting parties as a result of the consultations referred to above; or

b) If no such agreement has been reached within sixty days after the notification provided for in paragraph 14 has been received by the Contracting Parties, that the contracting party having recourse to this Section has made all reasonable efforts to reach an agreement and that the interests of other contracting parties are adequately safeguarded *.

The contracting party having recourse to this Section shall thereupon be released from its obligations under the relevant provisions of the other Articles of this Agreement to the extent necessary to permit it to apply the measure.

19 - If a proposed measure of the type described in paragraph 13 of this Article concerns an industry the establishment of which has in the initial period been facilitated by incidental protection afforded by restrictions imposed by the contracting party concerned for balance of payments purposes under the relevant provisions of this Agreement, that contracting party may resort to the provisions and procedures of this Section; provided that it shall not apply the proposed measure without the concurrence* of the Contracting Parties *.

20 - Nothing in the preceding paragraphs of this Section shall authorize any deviation from the provisions of Articles I, II and XIII of this Agreement. The provisos to paragraph 10 of this Article shall also be applicable to any restriction under this Section.

21 - At any time while a measure is being applied under paragraph 17 of this Article any contracting party substantially affected by it may suspend the application to the trade of the contracting party having recourse to this Section of such substantially equivalent concessions or other obligations under this Agreement the suspension of which the Contracting Parties do not disapprove *, provided that sixty days' notice of such suspension is given to the Contracting Parties not later than six months after the measure has been introduced or changed substantially to the detriment of the contracting party affected. Any such contracting party shall afford adequate opportunity for consultation in accordance with the provisions of Article XXII of this Agreement.

Section D

22 - A contracting party coming within the scope of subparagraph 4, b), of this Article desiring, in the interest of the development of its economy, to introduce a measure of the type described in paragraph 13 of this Article in respect of the establishment of a particular industry * may apply to the Contracting Parties for approval of such measure. The Contracting Parties shall promptly consult with such contracting party and shall, in making their decision, be guided by the considerations set out in paragraph 16. If the Contracting Parties concur * in the proposed measure the contracting party concerned shall be released from its obligations under the relevant provisions of the other Articles of this Agreement to the extent necessary to permit it to apply the measure. If the proposed measure affects a product which is the subject of a concession included in the appropriate Schedule annexed to this Agreement, the provisions of paragraph 18 shall apply *.

23 - Any measure applied under this Section shall comply with the provisions of paragraph 20 of this Article.

Article XIX

Emergency action on imports of particular products

1 - a) If, as a result of unforeseen developments and of the effect of the obligations incurred by a contracting party under this Agreement, including tariff concessions, any product is being imported into the territory of that contracting party in such increased quantities and under such conditions as to cause or threaten serious injury to domestic producers in that territory of like or directly competitive products, the contracting party shall be free, in respect of such product, and to the extent and for such time as may be necessary to prevent or remedy such injury, to suspend the obligation in whole or in part or to withdraw or modify the concession.

b) If any product, which is the subject of a concession with respect to a preference, is being imported into the territory of a contracting party in the circumstances set forth in subparagraph a) of this paragraph, so as to cause or threaten serious injury to domestic producers of like or directly competitive products in the territory of a contracting party which receives or received such preference, the importing contracting party shall be free, if that other contracting party so requests, to suspend the relevant obligation in whole or in part or to withdraw or modify the concession in respect of the product, to the extent and for such time as may be necessary to prevent or remedy such injury.

2 - Before any contracting party shall take action pursuant to the provisions of paragraph 1 of this Article, it shall give notice in writing to the Contracting Parties as far in advance as may be practicable and shall afford the Contracting Parties and those contracting parties having a substantial interest as exporters of the product concerned an opportunity to consult with it in respect of the proposed action. When such notice is given in relation to a concession with respect to a preference, the notice shall name the contracting party which has requested the action. In critical circumstances, where delay would cause damage which it would be difficult to repair, action under paragraph 1 of this Article may be taken provisionally without prior consultation, on the condition that consultation shall be effected immediately after taking such action.

3 - a) If agreement among the interested contracting parties with respect to the action is not reached, the contracting party which proposes to take or continue the action shall, nevertheless, be free to do so, and if such action is taken or continued, the affected contracting parties shall then be free, not later than ninety days after such action is taken, to suspend, upon the expiration of thirty days from the day on which written notice of such suspension is received by the Contracting Parties, the application to the trade of the contracting party taking such action, or, in the case envisaged in paragraph 1, b), of this Article, to the trade of the contracting party requesting such action, of such substantially equivalent concessions or other obligations under this Agreement the suspension of which the Contracting Parties do not disapprove.

b) Notwithstanding the provisions of subparagraph a) of this paragraph, where action is taken under paragraph 2 of this Article without prior consultation and causes or threatens serious injury in the territory of a contracting party to the domestic producers of products affected by the action, that contracting party shall, where delay would cause damage difficult to repair, be free to suspend, upon the taking of the action and throughout the period of consultation, such concessions or other obligations as may be necessary to prevent or remedy the injury.

Article XX

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 the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

a) Necessary to protect public morals;

b) Necessary to protect human, animal or plant life or health;

c) Relating to the importations or exportations of gold or silver;

d) Necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices;

e) Relating to the products of prison labour;

f) Imposed for the protection of national treasures of artistic, historic or archaeological value;

g) Relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;

h) Undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the Contracting Parties and not disapproved by them or which is itself so submitted and not so disapproved *;

i) Involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry, and shall not depart from the provisions of this Agreement relating to non-discrimination;

j) Essential to the acquisition or distribution of products in general or local short supply; provided that any such measures shall be consistent with the principle that all contracting parties are entitled to an equitable share of the international supply of such products, and that any such measures, which are inconsistent with the other provisions of the Agreement shall be discontinued as soon as the conditions giving rise to them have ceased to exist. The Contracting Parties shall review the need for this sub-paragraph not later than 30 June 1960.

Article XXI

Security exceptions

Nothing in this Agreement shall be construed:

a) To require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or

b) To prevent any contracting party 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;

iii) Taken in time of war or other emergency in international relations; or

c) To prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

Article XXII

Consultation

1 - Each contracting party shall accord sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as may be made by another contracting party with respect to any matter affecting the operation of this Agreement.

2 - The Contracting Parties may, at the request of a contracting party, consult with any contracting party or parties in respect of any matter for which it has not been possible to find a satisfactory solution through consultation under paragraph 1.

Article XXIII

Nullification or impairment

1 - If any contracting party should consider that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of:

a) The failure of another contracting party to carry out its obligations under this Agreement; or

b) The application by another contracting party of any measure, whether or not it conflicts with the provisions of this Agreement; or

c) The existence of any other situation;

the contracting party may, with a view to the satisfactory adjustment of the matter, make written representations or proposals to the other contracting party or parties which it considers to be concerned. Any contracting party thus approached shall give sympathetic consideration to the representations or proposals made to it.

2 - If no satisfactory adjustment is effected between the contracting parties concerned within a reasonable time, or if the difficulty is of the type described in paragraph 1, c), of this Article, the matter may be referred to the Contracting Parties. The Contracting Parties shall promptly investigate any matter so referred to them and shall make appropriate recommendations to the contracting parties which they consider to be concerned, or give a ruling on the matter, as appropriate. The Contracting Parties may consult with contracting parties, with the Economic and Social Council of the United Nations and with any appropriate inter-governmental organization in cases where they consider such consultation necessary. If the Contracting Parties consider that the circumstances are serious enough to justify such action, they may authorize a contracting party or parties to suspend the application to any other contracting party or parties of such concessions or other obligations under this Agreement as they determine to be appropriate in the circumstances. If the application to any contracting party of any concession or other obligation is in fact suspended, that contracting party shall then be free, not later than sixty days after such action is taken, to give written notice to the Executive Secretary (ver nota 3) to the Contracting Parties of its intention to withdraw from this Agreement and such withdrawal shall take effect upon the sixtieth day following the day on which such notice is received by him.

(nota 3) By the decision of 23 March 1965, the Contracting Parties changed the title of the head of the GATT secretariat from «Executive Secretary» to «Director-General».

PART III

Article XXIV

Territorial application - Frontier traffic - Customs unions and free-trade areas

1 - The provisions of this Agreement shall apply to the metropolitan customs territories of the contracting parties and to any other customs territories in respect of which this Agreement has been accepted under Article XXVI or is being applied under Article XXXIII or pursuant to the Protocol of Provisional Application. Each such customs territory shall, exclusively for the purposes of the territorial application of this Agreement, be treated as though it were a contracting party; provided that the provisions of this paragraph shall not be construed to create any rights or obligations as between two or more customs territories in respect of which this Agreement has been accepted under Article XXVI or is being applied under Article XXXIII or pursuant to the Protocol of Provisional Application by a single contracting party.

2 - For the purposes of this Agreement a customs territory shall be understood to mean any territory with respect to which separate tariffs or other regulations of commerce are maintained for a substantial part of the trade of such territory with other territories.

3 - The provisions of this Agreement shall not be construed to prevent:

a) Advantages accorded by any contracting party to adjacent countries in order to facilitate frontier traffic;

b) Advantages accorded to the trade with the Free Territory of Trieste by countries contiguous to that territory, provided that such advantages are not in conflict with the Treaties of Peace arising out of the Second World War.

4 - The contracting parties recognize the desirability of increasing freedom of trade by the development, through voluntary agreements, of closer integration between the economies of the countries parties to such agreements. They also recognize that the purpose of a customs union or of a free-trade area should be to facilitate trade between the constituent territories and not to raise barriers to the trade of other contracting parties with such territories.

5 - Accordingly, the provisions of this Agreement shall not prevent, as between the territories of contracting parties, the formation of a customs union or of a free-trade area or the adoption of an interim agreement necessary for the formation of a customs union or of a free-trade area; provided that:

a) With respect to a customs union, or an interim agreement leading to a formation of a customs union, the duties and other regulations of commerce imposed at the institution of any such union or interim agreement in respect of trade with contracting parties not parties to such union or agreement shall not on the whole be higher or more restrictive than the general incidence of the duties and regulations of commerce applicable in the constituent territories prior to the formation of such union or the adoption of such interim agreement, as the case may be;

b) With respect to a free-trade area, or an interim agreement leading to the formation of a free-trade area, the duties and other regulations of commerce maintained in each if the constituent territories and applicable at the formation of such free-trade area or the adoption of such interim agreement to the trade of contracting parties not included in such area or not parties to such agreement shall not be higher or more restrictive than the corresponding duties and other regulations of commerce existing in the same constituent territories prior to the formation of the free-trade area, or interim agreement as the case may be; and

c) Any interim agreement referred to in subparagraphs a) and b) shall include a plan and schedule for the formation of such a customs union or of such a free-trade area within a reasonable length of time.

6 - If, in fulfilling the requirements of subparagraph 5, a), a contracting party proposes to increase any rate of duty inconsistently with the provisions of Article II, the procedure set forth in Article XXVIII shall apply. In providing for compensatory adjustment, due account shall be taken of the compensation already afforded by the reduction brought about in the corresponding duty of the other constituents of the union.

7 - a) Any contracting party deciding to enter into a customs union or free-trade area, or an interim agreement leading to the formation of such a union or area, shall promptly notify the Contracting Parties and shall make available to them such information regarding the proposed union or area as will enable them to make such reports and recommendations to contracting parties as they may deem appropriate.

b) If, after having studied the plan and schedule included in an interim agreement referred to in paragraph 5 in consultation with the parties to that agreement and taking due account of the information made available in accordance with the provisions of subparagraph a), the Contracting Parties find that such agreement is not likely to result in the formation of a customs union or of a free-trade area within the period contemplated by the parties to the agreement or that such period is not a reasonable one, the Contracting Parties shall make recommendations to the parties to the agreement. 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.

c) Any substantial change in the plan or schedule referred to in paragraph 5, c), shall be communicated to the Contracting Parties, which may request the contracting parties concerned to consult with them if the change seems likely to jeopardize or delay unduly the formation of the customs union or of the free-trade area.

8 - For the purposes of this Agreement:

a) A customs union shall be understood to mean the substitution of a single customs territory for two or more customs territories, so that:

i) Duties and other restrictive regulations of commerce (except, where necessary, those permitted under Articles XI, XII, XIII, XIV, XV and XX) are eliminated with respect to substantially all the trade between the constituent territories of the union or at least with respect to substantially all the trade in products originating in such territories; and

ii) Subject to the provisions of paragraph 9, substantially the same duties and other regulations of commerce are applied by each of the members of the union to the trade of territories not included in the union;

b) A free-trade area shall be understood to mean a group of two or more customs territories in which the duties and other restrictive regulations of commerce (except, where necessary, those permitted under Articles XI, XII, XIII, XIV, XV and XX) are eliminated on substantially all the trade between the constituent territories in products originating in such territories.

9 - The preferences referred to in paragraph 2 of Article I shall not be affected by the formation of a customs union or of a free-trade area but may be eliminated or adjusted by means of negotiations with contracting parties affected *. This procedure of negotiations with affected contracting parties shall, in particular, apply to the elimination of preferences required to conform with the provisions of paragraph 8, a), i), and paragraph 8, b).

10 - The Contracting Parties may by a two-thirds majority approve proposals which do not fully comply with the requirements of paragraphs 5 to 9 inclusive, provided that such proposals lead to the formation of a customs union or a free-trade area in the sense of this Article.

11 - Taking into account the exceptional circumstances arising out of the establishment of India and Pakistan as independent States and recognizing the fact that they have long constituted an economic unit, the contracting parties agree that the provisions of this Agreement shall not prevent the two countries from entering into special arrangements with respect to the trade between them, pending the establishment of their mutual trade relations on a definitive basis *.

12 - Each contracting party shall take such reasonable measures as may be available to it to ensure observance of the provisions of this Agreement by the regional and local governments and authorities within its territories.

Article XXV

Joint action by the Contracting Parties

1 - Representatives of the contracting parties shall meet from time to time for the purpose of giving effect to those provisions of this Agreement which involve joint action and, generally, with a view to facilitating the operation and furthering the objectives of this Agreement. Wherever reference is made in this Agreement to the contracting parties acting jointly they are designated as the Contracting Parties.

2 - The Secretary-General of the United Nations is requested to convene the first meeting of the Contracting Parties, which shall take place not later than March 1, 1948.

3 - Each contracting party shall be entitled to have one vote at all meetings of the Contracting Parties.

4 - Except as otherwise provided for in this Agreement, decisions of the Contracting Parties shall be taken by a majority of the votes cast.

5 - In exceptional circumstances not elsewhere provided for in this Agreement, the Contracting Parties may waive an obligation imposed upon a contracting party by this Agreement; provided that any such decision shall be approved by a two-thirds majority of the votes cast and that such majority shall comprise more than half of the contracting parties. The Contracting Parties may also by such a vote:

i) Define certain categories of exceptional circumstances to which other voting requirements shall apply for the waiver of obligations; and

ii) Prescribe such criteria as may be necessary for the application of this paragraph (ver nota 4).

(nota 4) The authentic text erroneously reads «sub paragraph».

Article XXVI

Acceptance, entry into force and registration

1 - The date of this Agreement shall be 30 October 1947.

2 - This Agreement shall be open for acceptance by any contracting party which, on 1 March 1955, was a contracting party or was negotiating with a view to accession to this Agreement.

3 - This Agreement, done in a single English original and a single French original, both texts authentic, shall be deposited with the Secretary-General of the United Nations, who shall furnish certified copies thereof to all interested governments.

4 - Each government accepting this Agreement shall deposit an instrument of acceptance with the Executive Secretary (ver nota 5) to the Contracting Parties, who will inform all interested governments of the date of deposit of each instrument of acceptance and of the day on which this Agreement enters into force under paragraph 6 of this Article.

5 - a) Each government accepting this Agreement does so in respect of its metropolitan territory and of the other territories for which it has international responsibility, except such separate customs territories as it shall notify to the Executive Secretary (ver nota 5) to the Contracting Parties at the time of its own acceptance.

b) Any government, which has so notified the Executive Secretary (ver nota 5) under the exceptions in subparagraph a) of this paragraph, may at any time give notice to the Executive Secretary (ver nota 5) that its acceptance shall be effective in respect of any separate customs territory or territories so excepted and such notice shall take effect on the thirtieth day following the day on which it is received by the Executive Secretary (ver nota 5).

c) If any of the customs territories, in respect of which a contracting party has accepted this Agreement, possesses or acquires full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement, such territory shall, upon sponsorship through a declaration by the responsible contracting party establishing the above-mentioned fact, be deemed to be a contracting party.

6 - This Agreement shall enter into force, as among the governments which have accepted it, on the thirtieth day following the day on which instruments of acceptance have been deposited with Executive Secretary (ver nota 6) to the Contracting Parties on behalf of governments named in Annex H, the territories of which account for 85 per centum of the total external trade of the territories of such governments, computed in accordance with the applicable column of percentages set forth therein. The instrument of acceptance of each other government shall take effect on the thirtieth day following the day on which such instrument has been deposited.

7 - The United Nations is authorized to effect registration of this Agreement as soon as it enters into force.

(nota 5) By the Decision of 23 March 1965, the Contacting Parties changed the title of the head of the GATT secretariat from «Executive Secretary» to «Director-General».

(nota 6) By the Decision of 23 March 1965, the Contacting Parties changed the title of the head of the GATT secretariat from «Executive Secretary» to «Director-General».

Article XXVII

Withholding or withdrawal of concessions

Any contracting party shall at any time be free to withhold or to withdraw in whole or in part any concession, provided for in the appropriate Schedule annexed to this Agreement, in respect of which such contracting party determines that it was initially negotiated with a government which has not become, or has ceased to be, a contracting party. A contracting party taking such action shall notify the Contracting Parties and, upon request, consult with contracting parties which have a substantial interest in the product concerned.

Article XXVIII *

Modification of schedules

1 - On the first day of each three-year period, the first period beginning on 1 January 1958 (or on the first day of any other period * that may be specified by the Contracting Parties by two-thirds of the votes cast) a contracting party (hereafter in this Article referred to as the «applicant contracting party») may, by negotiation and agreement with any contracting party with which such concession was initially negotiated and with any other contracting party determined by the Contracting Parties to have a principal supplying interest * (which two preceding categories of contracting parties, together with the applicant contracting party, are in this Article hereinafter referred to as the «contracting parties primarily concerned»), and subject to consultation with any other contracting party determined by the Contracting Parties to have a substantial interest * in such concession, modify or withdraw a concession * included in the appropriate schedule annexed to this Agreement.

2 - In such negotiations and agreement, which may include provision for compensatory adjustment with respect to other products, the contracting parties concerned shall endeavour to maintain a general level of reciprocal and mutually advantageous concessions not less favourable to trade than that provided for in this Agreement prior to such negotiations.

3 - a) If agreement between the contracting parties primarily concerned cannot be reached before 1 January 1958 or before the expiration of a period envisaged in paragraph 1 of this Article, the contracting party which proposes to modify or withdraw the concession shall, nevertheless, be free to do so and if such action is taken any contracting party with which such concession was initially negotiated, any contracting party determined under paragraph 1 to have a principal supplying interest and any contracting party determined under paragraph 1 to have a substantial interest shall then be free not later than six months after such action is taken, to withdraw, upon the expiration of thirty days from the day on which written notice of such withdrawal is received by the Contracting Parties, substantially equivalent concessions initially negotiated with the applicant contracting party.

b) If agreement between the contracting parties primarily concerned is reached but any other contracting party determined under paragraph 1 of this Article to have a substantial interest is not satisfied, such other contracting party shall be free, not later than six months after action under such agreement is taken, to withdraw, upon the expiration of thirty days from the day on which written notice of such withdrawal is received by the Contracting Parties, substantially equivalent concessions initially negotiated with the applicant contracting party.

4 - The Contracting Parties may, at any time, in special circumstances, authorize * a contracting party to enter into negotiations for modification or withdrawal of a concession included in the appropriate Schedule annexed to this Agreement subject to the following procedures and conditions:

a) Such negotiations * and any related consultations shall be conducted in accordance with the provisions of paragraph 1 and 2 of this Article;

b) If agreement between the contracting parties primarily concerned is reached in the negotiations, the provisions of paragraph 3, b), of this Article shall apply;

c) If agreement between the contracting parties primarily concerned is not reached within a period of sixty days * after negotiations have been authorized, or within such longer period as the Contracting Parties may have prescribed, the applicant contracting party may refer the matter to the Contracting Parties;

d) Upon such reference, the Contracting Parties shall promptly examine the matter and submit their views to the contracting parties primarily concerned with the aim of achieving a settlement. If a settlement is reached, the provisions of paragraph 3, b), shall apply as if agreement between the contracting parties primarily concerned had been reached. If no settlement is reached between the contracting parties primarily concerned, the applicant contracting party shall be free to modify or withdraw the concession, unless the Contracting Parties determine that the applicant contracting party has unreasonably failed to offer adequate compensation *. If such action is taken, any contracting party with which the concession was initially negotiated, any contracting party determined under paragraph 4, a), to have a principal supplying interest and any contracting party determined under paragraph 4, a), to have a substantial interest, shall be free, not later than six months after such action is taken, to modify or withdraw, upon the expiration of thirty days from the day on which written notice of such withdrawal is received by the Contracting Parties, substantially equivalent concessions initially negotiated with applicant contracting party.

5 - Before 1 January 1958 and before the end of any period envisaged in paragraph 1 a contracting party may elect by notifying the Contracting Parties to reserve the right, for the duration of the next period, to modify the appropriate Schedule in accordance with the procedures of paragraph 1 to 3. If a contracting party so elects, other contracting parties shall have the right, during the same period, to modify or withdraw, in accordance with the same procedures, concessions initially negotiated with that contracting party.

Article XXVIII bis

Tariff negotiations

1 - The contracting parties recognize that customs duties often constitute serious obstacles to trade; thus negotiations on a reciprocal and mutually advantageous basis, directed to the substantial reduction of the general level of tariffs and other charges on imports and exports and in particular to the reduction of such high tariffs as discourage the importation even of minimum quantities, and conducted with due regard to the objectives of this Agreement and the varying needs of individual contracting parties, are of great importance to the expansion of international trade. The Contracting Parties may therefore sponsor such negotiations from time to time.

2 - a) Negotiations under this Article may be carried out on a selective product-by-product basis or by the application of such multilateral procedures as may be accepted by the contracting parties concerned. Such negotiations may be directed towards the reduction of duties, the binding of duties at then existing levels or undertakings that individual duties or the average duties on specified categories of products shall not exceed specified levels. The binding against increase of low duties or of duty-free treatment shall, in principle, be recognized as a concession equivalent in value to the reduction of high duties.

b) The contracting parties recognize that in general the success of multilateral negotiations would depend on the participation of all contracting parties which conduct a substantial proportion of their external trade with one another.

3 - Negotiations shall be conducted on a basis which affords adequate opportunity to take into account:

a) The needs of individual contracting parties and individual industries;

b) The needs of less-developed countries for a more flexible use of tariff protection to assist their economic development and the special needs of these countries to maintain tariffs for revenue purposes; and

c) All other relevant circumstances, including the fiscal, * developmental, strategic and other needs of the contracting parties concerned.

Article XXIX

The relation of this Agreement to the Havana Charter

1 - The contracting parties undertake to observe to the fullest extent of their executive authority the general principles of Chapters I to VI inclusive and of Chapter IX of the Havana Charter pending their acceptance of it in accordance with their constitutional procedures *.

2 - Part II of this Agreement shall be suspended on the day on which the Havana Charter enters into force.

3 - If by September 30, 1949, the Havana Charter has not entered into force, the contracting parties shall meet before December 31, 1949, to agree whether this Agreement shall be amended, supplemented or maintained.

4 - If at any time the Havana Charter should cease to be in force, the Contracting Parties shall meet as soon as practicable thereafter to agree whether this Agreement shall be supplemented, amended or maintained. Pending such agreement, Part II of this Agreement shall again enter into force; provided that the provisions of Part II other than Article XXIII shall be replaced, mutatis mutandis, in the form in which they then appeared in the Havana Charter; and provided further that no contracting party shall be bound by any provisions which did not bind it at the time when the Havana Charter ceased to be in force.

5 - If any contracting party has not accepted the Havana Charter by the date upon which it enters into force, the Contracting Parties shall confer to agree whether, and if so in what way, this Agreement in so far as it affects relations between such contracting party and other contracting parties, shall be supplemented or amended. Pending such agreement the provisions of Part II of this Agreement shall, notwithstanding the provisions of paragraph 2 of this Article, continue to apply as between such contracting party and other contracting parties.

6 - Contracting parties which are Members of the International Trade Organization shall not invoke the provisions of this Agreement so as to prevent the operation of any provision of the Havana Charter. The application of the principle underlying this paragraph to any contracting party which is not a Member of the International Trade Organization shall be the subject of an agreement pursuant to paragraph 5 of this Article.

Article XXX

Amendments

1 - Except where provision for modification is made elsewhere in this Agreement, amendments to the provisions of Part I of this Agreement or the provisions of Article XXIX or of this Article shall become effective upon acceptance by all the contracting parties, and other amendments to this Agreement shall become effective, in respect of those contracting parties which accept them, upon acceptance by two-thirds of the contracting parties and thereafter for each other contracting party upon acceptance by it.

2 - Any contracting party accepting an amendment to this Agreement shall deposit an instrument of acceptance with the Secretary-General of the United Nations within such period as the Contracting Parties may specify. The Contracting Parties may decide that any amendment made effective under this Article is of such a nature that any contracting party which has not accepted it within a period specified by the Contracting Parties shall be free to withdraw from this Agreement, or to remain a contracting party with the consent of the Contracting Parties.

Article XXXI

Withdrawal

Without prejudice to the provisions of paragraph 12 of Article XVIII, of Article XXIII or of paragraph 2 of Article XXX, any contracting party may withdraw from this Agreement, or may separately withdraw on behalf of any of the separate customs territories for which it has international responsibility and which at the time possesses full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement. The withdrawal shall take effect upon the expiration of six months from the day on which written notice of withdrawal is received by the Secretary-General of the United Nations.

Article XXXII

Contracting Parties

1 - The contracting parties to this Agreement shall be understood to mean those governments which are applying the provisions of this Agreement under Articles XXVI or XXXIII or pursuant to the Protocol of Provisional Application.

2 - At any time after the entry into force of this Agreement pursuant to paragraph 6 of Article XXVI, those contracting parties which have accepted this Agreement pursuant to paragraph 4 of Article XXVI may decide that any contracting party which has not so accepted it shall cease to be a contracting party.

Article XXXIII

Accession

A government not party to this Agreement, or a government acting on behalf of a separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement, may accede to this Agreement, on its own behalf or on behalf of that territory, on terms to be agreed between such government and the Contracting Parties. Decisions of the Contracting Parties under this paragraph shall be taken by a two-thirds majority.

Article XXXIV

Annexes

The annexes to this Agreement are hereby made an integral part of this Agreement.

Article XXXV

Non-application of the Agreement between Particular Contracting Parties

1 - This Agreement, or alternatively Article II of this Agreement, shall not apply as between any contracting party and any other contracting party if:

a) The two contracting parties have not entered into tariff negotiations with each other; and

b) Either of the contracting parties, at the time either becomes a contracting party, does not consent to such application.

2 - The Contracting Parties may review the operation of this Article in particular cases at the request of any contracting party and make appropriate recommendations.

PART IV *

Trade and development

Article XXXVI

Principles and objectives

1 * - The contracting parties:

a) Recalling that the basic objectives of this Agreement include the raising of standards of living and the progressive development of the economies of all contracting parties, and considering that the attainment of these objectives is particularly urgent for less-developed contracting parties;

b) Considering that export earnings of the less-developed contracting parties can play a vital part in their economic development and that the extent of this contribution depends on the prices paid by the less-developed contracting parties for essential imports, the volume of their exports, and the prices received for these exports;

c) Noting, that there is a wide gap between standards of living in less-developed countries and in other countries;

d) Recognizing that individual and joint action is essential to further the development of the economies of less-developed contracting parties and to bring about a rapid advance in the standards of living in these countries;

e) Recognizing that international trade as a means of achieving economic and social advancement should be governed by such rules and procedures - and measures in conformity with such rules and procedures - as are consistent with the objectives set forth in this Article;

f) Noting that the Contracting Parties may enable less-developed contracting parties to use special measures to promote their trade and development;

agree as follows.

2 - There is need for a rapid and sustained expansion of the export earnings of the less-developed contracting parties.

3 - There is need for positive efforts designed to ensure that less-developed contracting parties secure a share in the growth in international trade commensurate with the needs of their economic development.

4 - Given the continued dependence of many less-developed contracting parties on the exportation of a limited range of primary products *, there is need to provide in the largest possible measure more favourable and acceptable conditions of access to world markets for these products, and wherever appropriate to devise measures designed to stabilize and improve conditions of world markets in these products, including in particular measures designed to attain stable, equitable and remunerative prices, thus permitting an expansion of world trade and demand and a dynamic and steady growth of the real export earnings of these countries so as to provide them with expanding resources for their economic development.

5 - The rapid expansion of the economies of the less-developed contracting parties will be facilitated by a diversification * of the structure of their economies and the avoidance of an excessive dependence on the export of primary products. There is, therefore, need for increased access in the largest possible measure to markets under favourable conditions for processed and manufactured products currently or potentially of particular export interest to less-developed contracting parties.

6 - Because of the chronic deficiency in the export proceeds and other foreign exchange earnings of less-developed contracting parties, there are important interrelationships between trade and financial assistance to development. There is, therefore, need for close and continuing collaboration between the Contracting Parties and the international lending agencies so that they can contribute most effectively to alleviating the burdens these less-developed contracting parties assume in the interest of their economic development.

7 - There is need for appropriate collaboration between the Contracting Parties, other intergovernmental bodies and the organs and agencies of the United Nations system, whose activities relate to the trade and economic development of less-developed countries.

8 - The developed contracting parties do not expect reciprocity for commitments made by them in trade negotiations to reduce or remove tariffs and other barriers to the trade of less-developed contracting parties *.

9 - The adoption of measures to give effect to these principles and objectives shall be a matter of conscious and purposeful effort on the part of the contracting parties both individually and jointly.

Article XXXVII

Commitments

1 - The developed contracting parties shall to the fullest extent possible - that is, except when compelling reasons, which may include legal reasons, make it impossible - give effect to the following provisions:

a) Accord high priority to the reduction and elimination of barriers to products currently or potentially of particular export interest to less-developed contracting parties, including customs duties and other restrictions which differentiate unreasonably between such products in their primary and in their processed forms *;

b) Refrain from introducing, or increasing the incidence of, customs duties or non-tariff import barriers on products currently or potentially of particular export interest to less-developed contracting parties; and

c) :

i) Refrain from imposing new fiscal measures; and

ii) In any adjustments of fiscal policy accord high priority to the reduction and elimination of fiscal measures;

which would hamper, or which hamper, significantly the growth of consumption of primary products, in raw or processed form, wholly or mainly produced in the territories of less-developed contracting parties, and which are applied specifically to those products.

2 - a) Whenever it is considered that effect is not being given to any of the provisions of subparagraph a), b) or c) of paragraph 1, the matter shall be reported to the Contracting Parties either by the contracting party not so giving effect to the relevant provisions or by any other interested contracting party.

b):

i) The Contracting Parties shall, if requested so to do by any interested contracting party, and without prejudice to any bilateral consultations that may be undertaken, consult with the contracting party concerned and all interested contracting parties with respect to the matter with a view to reaching solutions satisfactory to all contracting parties concerned in order to further the objectives set forth in Article XXXVI. In the course of these consultations, the reasons given in cases where effect was not being given to the provisions of subparagraph a), b) or c) of paragraph 1 shall be examined;

ii) As the implementation of the provisions of subparagraph a), b) or c) of paragraph 1 by individual contracting parties may in some cases be more readily achieved where action is taken jointly with other developed contracting parties, such consultation might, where appropriate, be directed towards this end;

iii) The consultations by the Contracting Parties might also, in appropriate cases, be directed towards agreement on joint action designed to further the objectives of this Agreement as envisaged in paragraph 1 of Article XXV.

3 - The developed contracting parties shall:

a) Make every effort, in cases where a government directly or indirectly determines the resale price of products wholly or mainly produced in the territories of less-developed contracting parties, to maintain trade margins at equitable levels;

b) Give active consideration to the adoption of other measures * designed to provide greater scope for the development of imports from less-developed contracting parties and collaborate in appropriate international action to this end;

c) Have special regard to the trade interests of less-developed contracting parties when considering the application of other measures permitted under this Agreement to meet particular problems and explore all possibilities of constructive remedies before applying such measures where they would affect essential interests of those contracting parties.

4 - Less-developed contracting parties agree to take appropriate action in implementation of the provisions of Part IV for the benefit of the trade of other less-developed contracting parties, in so far as such action is consistent with their individual present and future development, financial and trade needs taking into account past trade developments as well as the trade interests of less-developed contracting parties as a whole.

5 - In the implementation of the commitments set forth in paragraph 1 to 4 each contracting party shall afford to any other interested contracting party or contracting parties full and prompt opportunity for consultations under the normal procedures of this Agreement with respect to any matter or difficulty which may arise.

Article XXXVIII

Joint action

1 - The contracting parties shall collaborate jointly, with the framework of this Agreement and elsewhere, as appropriate, to further the objectives set forth in Article XXXVI.

2 - In particular, the Contracting Parties shall:

a) Where appropriate, take action, including action through international arrangements, to provide improved and acceptable conditions of access to world markets for primary products of particular interest to less-developed contracting parties and to devise measures designed to stabilize and improve conditions of world markets in these products including measures designed to attain stable, equitable and remunerative prices for exports of such products;

b) Seek appropriate collaboration in matters of trade and development policy with the United Nations and its organs and agencies, including any institutions that may be created on the basis of recommendations by the United Nations Conference on Trade and Development;

c) Collaborate in analysing the development plans and policies of individual less-developed contracting parties and in examining trade and aid relationships with a view to devising concrete measures to promote the development of export potential and to facilitate access to export markets for the products of the industries thus developed and, in this connection, seek appropriate collaboration with governments and international organizations, and in particular with organizations having competence in relation to financial assistance for economic development, in systematic studies of trade and aid relationships in individual less-developed contracting parties aimed at obtaining a clear analysis of export potential, market prospects and any further action that may be required;

d) Keep under continuous review the development of world trade with special reference to the rate of growth of the trade of less-developed contracting parties and make such recommendations to contracting parties as may, in the circumstances, be deemed appropriate;

e) Collaborate in seeking feasible methods to expand trade for the purpose of economic development, through international harmonization and adjustment of national policies and regulations, through technical and commercial standards affecting production, transportation and marketing, and through export promotion by the establishment of facilities for the increased flow of trade information and the development of market research; and

f) Establish such institutional arrangements as may be necessary to further the objectives set forth in Article XXXVI and to give effect to the provision of this Part.

ANNEX A

LIST OF TERRITORIES REFERRED TO IN PARAGRAPH 2, a), OF ARTICLE I

United Kingdom of Great Britain and Northern Ireland.

Dependent territories of the United Kingdom of Great Britain and Northern.

Ireland.

Canada.

Commonwealth of Australia.

Dependent territories of the Commonwealth of Australia.

New Zealand.

Dependent territories of New Zealand.

Union of South Africa including South West Africa.

Ireland.

India (as on April 10, 1947).

Newfoundland.

Southern Rhodesia.

Burma.

Ceylon.

Certain of the territories listed above have two or more preferential rates in force for certain products. Any such territory may, by agreement with the other contracting parties which are principal suppliers of such products at the most-favoured-nation rate, substitute for such preferential rates a single preferential rate which shall not on the whole be less favourable to suppliers at the most-favoured-nation rate than the preferences in force prior to such substitution.

The imposition of an equivalent margin of tariff preference to replace a margin of preference in an internal tax existing on April 10, 1947 exclusively between two or more of the territories listed in this Annex or to replace the preferential quantitative arrangements described in the following paragraph, shall not be deemed to constitute an increase in a margin of tariff preference.

The preferential arrangements referred to in paragraph 5, b), of Article XIV are those existing in the United Kingdom on 10 April 1947, under contractual agreements with the Governments of Canada, Australia and New Zealand, in respect of chilled and frozen beef and veal, frozen mutton and lamb, chilled and frozen pork and bacon. It is the intention, without prejudice to any action taken under subparagraph h) (ver nota 7) of Article XX, that these arrangements shall be eliminated or replaced by tariff preferences, and that negotiations to this end shall take place as soon as practicable among the countries substantially concerned or involved.

The film hire tax in force in New Zealand on 10 April 1947, shall, for the purposes of this Agreement, be treated as a customs duty under Article I. The renters' film quota in force in New Zealand on April 10, 1947, shall, for the purposes of this Agreement, be treated as a screen quota under Article IV.

The Dominions of India and Pakistan have not been mentioned separately in the above list since they had not come into existence as such on the base date of April 10, 1947.

(nota 7) The authentic text erroneously reads «part I, h)».

ANNEX B

LIST OF TERRITORIES OF THE FRENCH UNION REFERRED TO IN PARAGRAPH 2, b), OF ARTICLE I

France.

French Equatorial Africa (Treaty Basin of the Congo (ver nota 8) and other territories).

French West Africa.

Cameroons under French Trusteeship (ver nota 8).

French Somali Coast and Dependencies.

French Establishments in Oceania.

French Establishments in the Condominium of the New Hebrides (ver nota 8).

Indo-China.

Madagascar and Dependencies.

Morocco (French zone) (ver nota 8).

New Caledonia and Dependencies.

Saint-Pierre and Miquelon.

Togo under French Trusteeship (ver nota 8).

Tunisia.

(nota 8) For imports into Metropolitan France and Territories of the French Union.

ANNEX C

LIST OF TERRITORIES REFERRED TO IN PARAGRAPH 2, b), OF ARTICLE I AS RESPECTS THE CUSTOMS UNION OF BELGIUM, LUXEMBURG AND THE NETHERLANDS.

The Economic Union of Belgium and Luxemburg.

Belgian Congo.

Ruanda Urundi.

Netherlands.

New Guinea.

Surinam.

Netherlands Antilles.

Republic of Indonesia.

For imports into the territories constituting the Customs Union only.

ANNEX D

LIST OF TERRITORIES REFERRED TO IN PARAGRAPH 2, b), OF ARTICLE I AS RESPECTS THE UNITED STATES OF AMERICA

United States of America (customs territory).

Dependent territories of the United States of America.

Republic of the Philippines.

The imposition of an equivalent margin of tariff preference to replace a margin of preference in an internal tax existing on 10 April, 1947, exclusively between two or more of the territories listed in this Annex shall not be deemed to constitute an increase in a margin of tariff preference.

ANNEX E

LIST OF TERRITORIES COVERED BY PREFERENTIAL ARRANGEMENTS BETWEEN CHILE AND NEIGHBOURING COUNTRIES REFERRED TO IN PARAGRAPH 2, d), OF ARTICLE I.

Preferences in force exclusively between Chile on the one hand, and:

1) Argentina;

2) Bolivia;

3) Peru;

on the other hand.

ANNEX F

LIST OF TERRITORIES COVERED BY PREFERENTIAL ARRANGEMENTS BETWEEN LEBANON AND SYRIA AND NEIGHBOURING COUNTRIES REFERRED TO IN PARAGRAPH 2, d), OF ARTICLE I.

Preferences in force exclusively between the Lebano-Syrian Customs Union, on the one hand, and:

1) Palestine;

2) Transjordan;

on the other hand.

ANNEX G

DATES ESTABLISHING MAXIMUM MARGINS OF PREFERENCE REFERRED TO IN PARAGRAPH 4 (ver nota 9) OF ARTICLE I

Australia - October 15, 1946.

Canada - July 1, 1939.

France - January 1, 1939.

Lebano-Syrian Customs Union - November 30, 1938.

Union of South Africa - July 1, 1938.

Southern Rhodesia - May 1, 1941.

(nota 9) The authentic text erroneously reads «paragraph 3».

ANNEX H

PERCENTAGE SHARES OF TOTAL EXTERNAL TRADE TO BE USED FOR THE PURPOSE OF MAKING THE DETERMINATION REFERRED TO IN ARTICLE XXVI (BASED ON THE AVERAGE OF 1949-1953).

If, prior to the accession of the Government of Japan to the General Agreement, the present Agreement has been accepted by contracting parties the external trade of which under column I accounts for the percentage of such trade specified in paragraph 6 of Article XXVI, column I shall be applicable for the purposes of that paragraph. If the present Agreement has not been so accepted prior to the accession of the Government of Japan, column II shall be applicable for the purposes of that paragraph.

(ver documento original)

Note: - These percentages have been computed taking into account the trade of all territories in respect of which the General Agreement on Tariffs and Trade is applied.

ANNEX I

NOTES AND SUPPLEMENTARY PROVISIONS

Ad Article 1

Paragraph 1:

The obligations incorporated in paragraph 1 of Article I by reference to paragraphs 2 and 4 of Article III and those incorporated in paragraph 2, b), of Article II by reference to Article VI shall be considered as falling within Part II for the purposes of the Protocol of Provisional Application.

The cross-references, in the paragraph immediately above and in paragraph I of Article I, to paragraphs 2 and 4 of Article III shall only apply after Article III has been modified by the entry into force of the amendment provided for in the Protocol Modifying Part II and Article XXVI of the General Agreement on Tariffs and Trade, dated September 14, 1948 (ver nota 10).

Paragraph 4:

The term «margin of preference» means the absolute difference between the most-favoured-nation rate of duty and the preferential rate of duty for the like product, and not the proportionate relation between those rates. As examples:

1) If the most-favoured-nation rate were 36 per cent ad valorem and the preferential rate were 24 per cent ad valorem, the margin of preference would be 12 per cent ad valorem, and not one-third of the most-favoured-nation rate;

2) If the most-favoured-nation rate were 36 per cent ad valorem and the preferential rate were expressed as two-thirds of the mostfavoured-nation rate, the margin of preference would be 12 per cent ad valorem;

3) If the most-favoured-nation rate were 2 francs per kilogramme and the preferential rate were 1.50 francs per kilogramme, the margin of preference would be 0.50 franc per kilogramme.

The following kinds of customs action, taken in accordance with established uniform procedures, would not be contrary to a general binding of margins of preference:

i) The re-application to an imported product of a tariff classification or rate of duty, properly applicable to such product, in cases in which the application of such classification or rate to such product was temporarily suspended or inoperative on April 10, 1947; and

ii) The classification of a particular product under a tariff item other than that under which importations of that product were classified on April 10, 1947, in cases in which the tariff law clearly contemplates that such product may be classified under more than one tariff item.

(nota 10) This Protocol entered into force on 14 December 1948.

Ad Article II

Paragraph 2, a):

The cross-reference, in paragraph 2, a) of Article II, to paragraph 2 of Article III shall only apply after Article III has been modified by the entry into force of the amendment provided for in the Protocol Modifying Part II and Article XXVI of the General Agreement on Tariffs and Trade, dated September 14, 1948 (ver nota 11).

Paragraph 2, b):

See the note relating to paragraph 1 of Article I.

Paragraph 4:

Except where otherwise specifically agreed between the contracting parties which initially negotiated the concession, the provisions of this paragraph will be applied in the light of the provisions of Article 31 of the Havana Charter.

(nota 11) This Protocol entered into force on 14 December 1948.

Ad Article III

Any internal tax or other internal charge, or any law, regulation or requirement of the kind referred to in paragraph 1 which applies to an imported product and to the like domestic product and is collected or enforced in the case of the imported product at the time or point of importation, is nevertheless to be regarded as an internal tax or other internal charge, or a law, regulation or requirement of the kind referred to in paragraph 1, and is accordingly subject to the provisions of Article III.

Paragraph 1:

The application of paragraph 1 to internal taxes imposed by local governments and authorities with the territory of a contracting party is subject to the provisions of the final paragraph of Article XXIV. The term «reasonable measures» in the last-mentioned paragraph would not require, for example, the repeal of existing national legislation authorizing local governments to impose internal taxes which, although technically inconsistent with the letter of Article III, are not in fact inconsistent with its spirit, if such repeal would result in a serious financial hardship for the local governments or authorities concerned. With regard to taxation by local governments or authorities which is inconsistent with both the letter and spirit of Article III, the term «reasonable measures» would permit a contracting party to eliminate the inconsistent taxation gradually over a transition period, if abrupt action would create serious administrative and financial difficulties.

Paragraph 2:

A tax conforming to the requirements of the first sentence of paragraph 2 would be considered to be inconsistent with the provisions of the second sentence only in cases where competition was involved between, on the one hand, the taxed product and, on the other hand, a directly competitive or substitutable product which was not similarly taxed.

Paragraph 5:

Regulations consistent with the provisions of the first sentence of paragraph 5 shall not be considered to be contrary to the provisions of the second sentence in any case in which all of the products subject to the regulations are produced domestically in substantial quantities. A regulation cannot be justified as being consistent with the provisions of the second sentence on the ground that the proportion or amount allocated to each of the products which are the subject of the regulation constitutes an equitable relationship between imported and domestic products.

Ad Article V

Paragraph 5:

With regard to transportation charges, the principle laid down in paragraph 5 refers to like products being transported on the same route under like conditions.

Ad Article VI

Paragraph 1:

1 - Hidden dumping by associated houses (that is, the sale by an importer at a price below that corresponding to the price invoiced by an exporter with whom the importer is associated, and also below the price in the exporting country) constitutes a form of price dumping with respect to which the margin of dumping may be calculated on the basis of the price at which the goods are resold by the importer.

2 - It is recognized that, in the case of imports from a country which has a complete or substantially complete monopoly of its trade and where all domestic prices are fixed by the State, special difficulties may exist in determining price comparability for the purposes of paragraph 1, and in such cases importing contracting parties may find it necessary to take into account the possibility that a strict comparison with domestic prices in such a country may not always be appropriate.

Paragraphs 2 and 3:

1 - As in many other cases in customs administration, a contracting party may require reasonable security (bond or cash deposit) for the payment of anti-dumping or countervailing duty pending final determination of the facts in any case of suspected dumping or subsidization.

2 - Multiple currency practices can in certain circumstances constitute a subsidy to exports which may be by countervailing duties under paragraph 3 or can constitute a form of dumping by means of a partial depreciation of a country's currency which may be met by action under paragraph 2. By «multiple currency practices» is meant practices by governments or sanctioned by governments.

Paragraph 6, b):

Waivers under the provisions of this subparagraph shall be granted only on application by the contracting party proposing to levy an anti-dumping or countervailing duty, as the case may be.

Ad Article VII

Paragraph 1:

The expression «or other charges» is not to be regarded as including internal taxes or equivalent charges imposed on or in connection with imported products.

Paragraph 2:

1 - It would be in conformity with Article VII to presume that «actual value» may be represented by the invoice price, plus any non-included charges for legitimate costs which are proper elements of «actual value» and plus any abnormal discount or other reduction from the ordinary competitive price.

2 - It would be in conformity with Article VII, paragraph 2, b), for a contracting party to construe the phrase «in the ordinary course of trade [...] under fully competitive conditions», as excluding any transaction wherein the buyer and seller are not independent of each other and price is not the sole consideration.

3 - The standard of «fully competitive conditions» permits a contracting party to exclude from consideration prices involving special discounts limited to exclusive agents.

4 - The wording of subparagraphs a) and b) permits a contracting party to determine the value for customs purposes uniformly either 1) on the basis of a particular exporter's prices of the imported merchandise, or 2) on the basis of the general price level of like merchandise.

Ad Article VIII

1 - While Article VIII does not cover the use of multiple rates of exchange as such, paragraphs I and 4 condemn the use of exchange taxes or fees as a device for implementing multiple currency practices; if, however, a contracting party is using multiple currency exchange fees for balance of payments reasons with the approval of the International Monetary Fund, the provisions of paragraph 9, a), of Article XV fully safeguard its position.

2 - It would be consistent with paragraph 1 if, on the importation of products from the territory of a contracting party into the territory of another contracting party, the production of certificates of origin should only be required to the extent that is strictly indispensable.

Ad Articles XI, XII, XIII, XIV and XVIII

Throughout Articles XI, XII, XIII, XIV and XVIII, the terms «import restrictions» or «export restrictions» include restrictions made effective through state-trading operations.

Ad Article XI

Paragraph 2 c):

The term «in any form» in this paragraph covers the same products when in an early stage of processing and still perishable, which compete directly with the fresh product and if freely imported would tend to make the restriction on the fresh product ineffective.

Paragraph 2, last subparagraph:

The term «special factors» includes changes in relative productive efficiency as between domestic and foreign producers, or as between different foreign producers, but not changes artificially brought about by means not permitted under the Agreement.

Ad Article XII

The Contracting Parties shall make provision for the utmost secrecy in the conduct of any consultation under the provisions of this Article.

Paragraph 3, c), i):

Contracting parties applying restrictions shall endeavour to avoid causing serious prejudice to exports of a commodity on which the economy of a contracting party is largely dependent.

Paragraph 4, b):

It is agreed that the date shall be within ninety days after the entry into force of the amendments of this Article effected by the Protocol Amending the Preamble and Parts II and III of this Agreement. However, should the Contracting Parties find that conditions were not suitable for the application of the provisions of this subparagraph at the time envisaged, they may determine a later date; provided that such date is not more than thirty days after such time as the obligations of Article VIII, Sections 2, 3 and 4, of the Articles of Agreements of the International Monetary Fund become applicable to contracting parties, members of the Fund, the combined foreign trade of which constitutes at least fifty per centum of the aggregate foreign trade of all contracting parties.

Paragraph 4, e):

It is agreed that paragraph 4, e), does not add any new criteria for the imposition or maintenance of quantitative restrictions for balance of payments reasons. It is solely intended to ensure that all external factors such as changes in the terms of trade, quantitative restrictions, excessive tariffs and subsidies, which may be contributing to the balance of payments difficulties of the contracting party applying restrictions, will be fully taken into account.

Ad Article XIII

Paragraph 2, d):

No mention was made of «commercial considerations» as a rule for the allocation of quotas because it was considered that its application by governmental authorities might not always be practicable. Moreover, in cases where it is practicable, a contracting party could apply these considerations in the process of seeking agreement, consistently with the general rule laid down in the opening sentence of paragraph 2.

Paragraph 4:

See note relating to «special factors» in connection with the last subparagraph of paragraph 2 of Article XI.

Ad Article XIV

Paragraph 1:

The provisions of this paragraph shall not be so construed as to preclude full consideration by the contracting parties, in the consultations provided for in paragraph 4 of Article XII and in paragraph 12 of Article XVIII, of the nature, effects and reasons for discrimination in the field of import restrictions.

Paragraph 2:

One of the situations contemplated in paragraph 2 is that of a contracting party holding balances acquired as a result of current transactions which it finds itself unable to use without a measure of discrimination.

Ad Article XV

Paragraph 4:

The word «frustrate» is intended to indicate, for example, that infringements of the letter of any Article of this Agreement by exchange action shall not be regarded as a violation of that Article if, in practice, there is no appreciable departure from the intent of the Article. Thus, a contracting party which, as part of its exchange control operated in accordance with the Articles of Agreement of the International Monetary Fund, requires payment to be received for its exports in its own currency or in the currency of one or more members of the International Monetary Fund will not thereby be deemed to contravene Article XI or Article XIII. Another example would be that of a contracting party which specifies on an import licence the country from which the goods may be imported, for the purpose not of introducing any additional element of discrimination in its import licensing system but of enforcing permissible exchange controls.

Ad Article XVI

The exemption of an exported product from 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.

Section B:

1 - Nothing in Section B shall preclude the use by a contracting party of multiple rates of exchange in accordance with the Articles of Agreement of the International Monetary Fund.

2 - For the purposes of Section B, a «primary product» is understood to be any product of farm, forest or fishery, or any mineral, in its natural form or which has undergone such processing as is customarily required to prepare it for marketing in substantial volume in international trade.

Paragraph 3:

1 - The fact that a contracting party has not exported the product in question during the previous representative period would not in itself preclude that contracting party from establishing its right to obtain a share of the trade in the product concerned.

2 - A system for the stabilization of the domestic price or of the return to domestic producers of a primary product independently of the movements of export prices, which results at times in the sale of the product for export at a price lower than the comparable price charged for the like product to buyers in the domestic market, shall be considered not to involve a subsidy on exports within the meaning of paragraph 3 if the Contracting Parties determine that:

a) The system has also resulted, or is so designed as to result, in the sale of the product for export at a price higher than the comparable price charged for the like product to buyers in the domestic market; and

b) The system is so operated, or is designed so to operate, either because of the effective regulation of production or otherwise, as not to stimulate exports unduly or otherwise seriously to prejudice the interests of other contracting parties.

Notwithstanding such determination by the Contracting Parties, operations under such a system shall be subject to the provisions of paragraph 3 where they are wholly or partly financed out of government funds in addition to the funds collected from producers in respect of the product concerned.

Paragraph 4:

The intention of paragraph 4 is that the contracting parties should seek before the end of 1957 to reach agreement to abolish all remaining subsidies as from 1 January 1958; or, failing this, to reach agreement to extend the application of the standstill until the earliest date thereafter by which they can expect to reach such agreement.

Ad Article XVII

Paragraph 1:

The operations of Marketing Boards, which are established by contracting parties and are engaged in purchasing or selling, are subject to the provisions of subparagraphs a) and b).

The activities of Marketing Boards which are established by contracting parties and which do not purchase or sell but lay down regulations covering private trade are governed by the relevant Articles of this Agreement.

The charging by a state enterprise of different prices for its sales of a product in different markets is not precluded by the provisions of this Article, provided that such different prices are charged for commercial reasons, to meet conditions of supply and demand in export markets.

Paragraph 1, a):

Governmental measures imposed to insure standards of quality and efficiency in the operation of external trade, or privileges granted for the exploitation of national natural resources but which do not empower the government to exercise control over the trading activities of the enterprise in question, do not constitute «exclusive or special privileges».

Paragraph 1, b):

A country receiving a «tied loan» is free to take this loan into account as a «commercial consideration» when purchasing requirements abroad.

Paragraph 2:

The term «goods» is limited to products as understood in commercial practice, and is not intended to include the purchase or sale of services.

Paragraph 3:

Negotiations which contracting parties agree to conduct under this paragraph may be directed towards the reduction of duties and other charges on imports and exports or towards the conclusion of any other mutually satisfactory arrangement consistent with the provisions of this Agreement. (See paragraph 4 of Article 11 and the note to that paragraph.)

Paragraph 4, b):

The term «import mark-up» in this paragraph shall represent the margin by which the price charged by the import monopoly for the imported product (exclusive of internal taxes within the purview of Article 111, transportation, distribution, and other expenses incident to the purchase, sale or further processing, and a reasonable margin of profit) exceeds the landed cost.

Ad Article XVIII

The Contracting Parties and the contracting parties concerned shall preserve the utmost secrecy in respect of matters arising under this Article.

Paragraphs 1 and 4:

1 - When they consider whether the economy of a contracting party «can only support low standards of living», the Contracting Parties shall take into consideration the normal position of that economy and shall not base their determination on exceptional circumstances such as those which may result from the temporary existence of exceptionally favourable conditions for the staple export product or products of such contracting party.

2 - The phrase «in the early stages of development» is not meant to apply only to contracting parties which have just started their economic development, but also to contracting parties the economies of which are undergoing a process of industrialization to correct an excessive dependence on primary production.

Paragraphs 2, 3, 7, 13 and 22:

The reference to the establishment of particular industries shall apply not only to the establishment of a new industry, but also to the establishment of a new branch of production in an existing industry and to the substantial transformation of an existing industry, and to the substantial expansion of an existing industry supplying a relatively small proportion of the domestic demand. It shall also cover the reconstruction of an industry destroyed or substantially damaged as a result of hostilities or natural disasters.

Paragraph 7, b):

A modification or withdrawal, pursuant to paragraph 7, b), by a contracting party, other than the applicant contracting party, referred to in paragraph 7, a), shall be made within six months of the day on which the action is taken by the applicant contracting party, and shall become effective on the thirtieth day following the day on which such modification or withdrawal has been notified to the Contracting Parties.

Paragraph 11:

The second sentence in paragraph 11 shall not be interpreted to mean that a contracting party is required to relax or remove restrictions if such relaxation or removal would thereupon produce conditions justifying the intensification or institution, respectively, of restrictions under paragraph 9 of Article XVIII.

Paragraph 12, b):

The date referred to in paragraph 12, b), shall be the date determined by the Contracting Parties in accordance with the provisions of paragraph 4, b), of Article XII of this Agreement.

Paragraphs 13 and 14:

It is recognized that, before deciding on the introduction of a measure and notifying the Contracting Parties in accordance with paragraph 14, a contracting party may need a reasonable period of time to assess the competitive position of the industry concerned.

Paragraphs 15 and 16:

It is understood that the Contracting Parties shall invite a contracting party proposing to apply a measure under Section C to consult with them pursuant to paragraph 16 if they are requested to do so by a contracting party the trade of which would be appreciably affected by the measure in question.

Paragraphs 16, 18, 19 and 22:

1 - It is understood that the Contracting Parties may concur in a proposed measure subject to specific conditions or limitations. If the measure as applied does not conform to the terms of the concurrence it will to that extent be deemed a measure in which the Contracting Parties have not concurred. In cases in which the Contracting Parties have concurred in a measure for a specified period, the contracting party concerned, if it finds that the maintenance of the measure for a further period of time is required to achieve the objective for which the measure was originally taken, may apply to the Contracting Parties for an extension of that period in accordance with the provisions and procedures of Section C or D, as the case may be.

2 - It is expected that the Contracting Parties will, as a rule, refrain from concurring in a measure which is likely to cause serious prejudice to exports of a commodity on which the economy of a contracting party is largely dependent.

Paragraph 18 and 22:

The phrase «that the interests of other contracting parties are adequately safeguarded» is meant to provide latitude sufficient to permit consideration in each case of the most appropriate method of safeguarding those interests. The appropriate method may, for instance, take the form of an additional concession to be applied by the contracting party having recourse to Section C or D during such time as the deviation from the other Articles of the Agreement would remain in force or of the temporary suspension by any other contracting party referred to in paragraph 18 of a concession substantially equivalent to the impairment due to the introduction of the measure in question. Such contracting party would have the right to safeguard its interests through such a temporary suspension of a concession; Provided that this right will not be exercised when, in the case of a measure imposed by a contracting party coming within the scope of paragraph 4, a), the Contracting Parties have determined that the extent of the compensatory concession proposed was adequate.

Paragraph 19:

The provisions of paragraph 19 are intended to cover the cases where an industry has been in existence beyond the «reasonable period of time» referred to in the note to paragraphs 13 and 14, and should not be so construed as to deprive a contracting party coming within the scope of paragraph 4, a), of Article XVIII, of its right to resort to the other provisions of Section C, including paragraph 17, with regard to a newly established industry even though it has benefited from incidental protection afforded by balance of payments import restrictions.

Paragraph 21:

Any measure taken pursuant to the provisions of paragraph 21 shall be withdrawn forthwith if the action taken in accordance with paragraph 17 is withdrawn or if the Contracting Parties concur in the measure proposed after the expiration of the ninety-day time limit specified in paragraph 17.

Ad Article XX

Subparagraph h):

The exception provided for in this subparagraph extends to any commodity agreement which conforms to the principles approved by the Economic and Social Council in its resolution 30 (IV) of 28 March 1947.

Ad Article XXIV

Paragraph 9:

It is understood that the provisions of Article I would require that, when a product which has been imported into the territory of a member of a customs union or free-trade area at a preferential rate of duty is re-exported to the territory of another member of such union or area, the latter member should collect a duty equal to the difference between the duty already paid and any higher duty that would be payable if the product were being imported directly into its territory.

Paragraph 11:

Measures adopted by India and Pakistan in order to carry out definitive trade arrangements between them, once they have been agreed upon, might depart from particular provisions of this Agreement, but these measures would in general be consistent with the objectives of the Agreement.

Ad Article XXVIII

The Contracting Parties and each contracting party concerned should arrange to conduct the negotiations and consultations with the greatest possible secrecy in order to avoid premature disclosure of details of prospective tariff changes. The Contracting Parties shall be informed immediately of all changes in national tariffs resulting from recourse to this Article.

Paragraph 1:

1 - If the Contracting Parties specify a period other than a three-year period, a contracting party may act pursuant to paragraph I or paragraph 3 of Article XXVIII on the first day following the expiration of such other period and, unless the Contracting Parties have again specified another period, subsequent periods will be three-year periods following the expiration of such specified period.

2 - The provision that on 1 January 1958, and on other days determined pursuant to paragraph 1, a contracting party «may [...] modify or withdraw a concession» means that on such day, and on the first day after the end of each period, the legal obligation of such contracting party under Article II is altered; it does not mean that the changes in its customs tariff should necessarily be made effective on that day. If a tariff change resulting from negotiations undertaken pursuant to this Article is delayed, the entry into force of any compensatory concessions may be similarly delayed.

3 - Not earlier than six months, nor later than three months, prior to 1 January 1958, or to the termination date of any subsequent period, a contracting party wishing to modify or withdraw any concession embodied in the appropriate Schedule, should notify the Contracting Parties to this effect. The Contracting Parties shall then determine the contracting party or contracting parties with which the negotiations or consultations referred to in paragraph 1 shall take place. Any contracting party so determined shall participate in such negotiations or consultations with the applicant contracting party with the aim of reaching agreement before the end of the period. Any extension of the assured life of the Schedules shall relate to the Schedules as modified after such negotiations, in accordance with paragraphs l, 2, and 3 of Article XXVIII. If the Contracting Parties are arranging for multilateral tariff negotiations to take place within the period of six months before 1 January 1958, or before any other day determined pursuant to paragraph 1, they shall include in the arrangements for such negotiations suitable procedures for carrying out the negotiations referred to in this paragraph.

4 - The object of providing for the participation in the negotiation of any contracting party with a principle supplying interest, in addition to any contracting party with which the concession was originally negotiated, is to ensure that a contracting party with a larger share in the trade affected by the concession than a contracting party with which the concession was originally negotiated shall have an effective opportunity to protect the contractual right which it enjoys under this Agreement. On the other hand, it is not intended that the scope of the negotiations should be such as to make negotiations and agreement under Article XXVIII unduly difficult nor to create complications in the application of this Article in the future to concessions which result from negotiations thereunder. Accordingly, the Contracting Parties should only determine that a contracting party has a principal supplying interest if that contracting party has had, over a reasonable period of time prior to the negotiations, a larger share in the market of the applicant contracting party than a contracting party with which the concession was initially negotiated or would, in the judgement of the Contracting Parties, have had such a share in the absence of discriminatory quantitative restrictions maintained by the applicant contracting party. It would therefore not be appropriate for the Contracting Parties to determine that more than one contracting party, or in those exceptional cases where there is near equality more than two contracting parties, had a principal supplying interest.

5 - Notwithstanding the definition of a principal supplying interest in note 4 to paragraph 1, the Contracting Parties may exceptionally determine that a contracting party has a principal supplying interest if the concession in question affects trade which constitutes a major part of the total exports of such contracting party.

6 - It is not intended that provision for participation in the negotiations of any contracting party with a principal supplying interest, and for consultation with any contracting party having a substantial interest in the concession which the applicant contracting party is seeking to modify or withdraw, should have the effect that it should have to pay compensation or suffer retaliation greater than the withdrawal or modification sought, judged in the light of the conditions of trade at the time of the proposed withdrawal or modification, making allowance for any discriminatory quantitative restrictions maintained by the applicant contracting party.

7 - The expression «substantial interest» is not capable of a precise definition and accordingly may present difficulties for the Contracting Parties. It is, however, intended to be construed to cover only those contracting parties which have, or in the absence of discriminatory quantitative restrictions affecting their exports could reasonably be expected to have, a significant share in the market of the contracting party seeking to modify or withdraw the concession.

Paragraph 4:

1 - Any request for authorization to enter into negotiations shall be accompanied by all relevant statistical and other data. A decision on such request shall be made within thirty days of its submission.

2 - It is recognized that to permit certain contracting parties, depending in large measure on a relatively small number of primary commodities and relying on the tariff as an important aid for furthering diversification of their economies or as an important source of revenue, normally to negotiate for the modification or withdrawal of concessions only under paragraph 1 of Article XXVIII, might cause them at such time to make modifications or withdrawals which in the long run would prove unnecessary. To avoid such a situation the Contracting Parties shall authorize any such contracting party, under paragraph 4, to enter into negotiations unless they consider this would result in, or contribute substantially towards, such an increase in tariff levels as to threaten the stability of the Schedules to this Agreement or lead to undue disturbance of international trade.

3 - It is expected that negotiations authorized under paragraph 4 for modification or withdrawal of a single item, or a very small group of items, could normally be brought to a conclusion in sixty days. It is recognized, however, that such a period will be inadequate for cases involving negotiations for the modification or withdrawal of a larger number of items and in such cases, therefore, it would be appropriate for the Contracting Parties to prescribe a longer period.

4 - The determination referred to in paragraph 4, d), shall be made by the Contracting Parties within thirty days of the submission of the matter to them unless the applicant contracting party agrees to a longer period.

5 - In determining under paragraph 4, d), whether an applicant contracting party has unreasonably failed to offer adequate compensation, it is understood that the Contracting Parties will take due account of the special position of a contracting party which has bound a high proportion of its tariffs at very low rates of duty and to this extent has less scope than other contracting parties to make compensatory adjustment.

Ad Article XXVIII bis

Paragraph 3:

It is understood that the reference to fiscal needs would include the revenues aspect of duties and particularly duties imposed primarily for revenue purpose, or duties imposed on products which can be substituted for products subject to revenue duties to prevent the avoidance of such duties.

Ad Article XXIX

Paragraph 1:

Chapters VII and VIII of the Havana Charter have been excluded from paragraph I because they generally deal with the organization, functions and procedures of the International Trade Organization.

Ad Part IV

The words «developed contracting parties» and the words «less-developed contracting parties» as used in Part IV are to be understood to refer to developed and less-developed countries which are parties to the General Agreement on Tariffs and Trade.

Ad Article XXXVI

Paragraph 1:

This Article is based upon the objectives set forth in Article I as it will be amended by Section A of paragraph 1 of the Protocol Amending Part I and Articles XXIX and XXX when that Protocol enters into force (ver nota 12).

Paragraph 4:

The term «primary products» includes agricultural products, vide paragraph 2 of the note ad Article XVI, Section B.

Paragraph 5:

A diversification programme would generally include the intensification of activities for the processing of primary products and the development of manufacturing industries, taking into account the situation of the particular contracting party and the world outlook for production and consumption of different commodities.

Paragraph 8:

It is understood that the phrase «do not expect reciprocity» means, in accordance with the objectives set forth in this Article, that the less-developed contracting parties should not be expected, in the course of trade negotiations, to make contributions which are inconsistent with their individual development, financial and trade needs, taking into consideration past trade developments.

This paragraph would apply in the event of action under Section A of Article XVIII, Article XXVIII, Article XXVIII bis [Article XXIX after the amendment set forth in Section A of paragraph 1 of the Protocol Amending Part I and Articles XXIX and XXX shall have become effective (ver nota 13)], Article XXXIII, or any other procedure under this Agreement.

Ad Article XXXVII

Paragraph 1, a):

This paragraph would apply in the event of negotiations for reduction or elimination of tariffs or other restrictive regulations of commerce under Articles XXVIII, XXVIII bis [XXIX after the amendment set forth in Section A of paragraph 1 of the Protocol Amending Part I and Articles XXIX and XXX shall have become effective (ver nota 13)], and Article XXXIII, as well as in connection with other action to effect such reduction or elimination which contracting parties may be able to undertake.

Paragraph 3, b):

The other measures referred to in this paragraph might include steps to promote domestic structural changes, to encourage the consumption of particular products, or to introduce measures of trade promotion.

(nota 12) This Protocol was abandoned on 1 January 1968.

(nota 13) This Protocol was abandoned on 1 January 1968.

ACTO FINAL, QUE CONSAGRA OS RESULTADOS DAS NEGOCIAÇÕES COMERCIAIS MULTILATERAIS DO URUGUAY ROUND.

LISTA DE ABREVIATURAS

MGA - Medida global de apoio (Acordo sobre a Agricultura).

BISD - Instrumentos de base e documentos seleccionados (publicados pelo GATT).

CCA - Conselho de Cooperação Aduaneira.

Secretariado do CCA - Secretariado do Conselho de Cooperação Aduaneira.

Memorando de Entendimento sobre Resolução de Litígios (MERL) - Memorando de Entendimento sobre as Regras e Processos Que Regem a Resolução de Litígios.

ORL - Órgão de Resolução de Litígios.

FAO - Organização das Nações Unidas para a Alimentação e a Agricultura.

GATS - Acordo Geral sobre o Comércio de Serviços.

GATT de 1994 - Acordo Geral sobre Pautas Aduaneiras e Comércio de 1994.

SH - Sistema Harmonizado de Designação e de Codificação das Mercadorias.

FMI - Fundo Monetário Internacional.

ISO - Organização Internacional de Normalização.

ISO/CEI - ISO/Comissão Electrotécnica Internacional.

AMF - Acordo Relativo ao Comércio Internacional de Têxteis.

GPP - Grupo Permanente de Peritos (Acordo sobre as Subvenções e as Medidas de Compensação).

SMC - Subvenções e Medidas de Compensação.

Secretariado - Secretariado da Organização Mundial do Comércio.

SE - Salvaguarda especial (Acordo sobre a Agricultura).

TE - Tratamento especial (Anexo 5, Acordo sobre a Agricultura).

OST - Órgão de Supervisão dos Têxteis.

OEPC - Órgão de Exame das Políticas Comerciais.

MEPC - Mecanismo de Exame das Políticas Comerciais.

TRIM - Medidas de Investimento Relacionadas com o Comércio.

TRIPS - Aspectos dos Direitos de Propriedade Intelectual Relacionados com o Comércio.

OVT - Órgão de Vigilância dos Têxteis.

Banco Mundial - Banco Internacional de Reconstrução e Desenvolvimento.

OMC - Organização Mundial do Comércio.

Acordo OMC - Acordo Que Cria a Organização Mundial do Comércio.

ACTO FINAL, QUE CONSAGRA OS RESULTADOS DAS NEGOCIAÇÕES COMERCIAIS MULTILATERAIS DO URUGUAY ROUND.

1 - Tendo-se reunido a fim de concluírem as negociações comerciais multilaterais do Uruguay Round, os Representantes dos Governos e das Comunidades Europeias, membros do Comité das Negociações Comerciais, acordam em que o Acordo Que Cria a Organização Mundial do Comércio (designado por «Acordo OMC» no presente Acto Final), as Declarações e Decisões Ministeriais e Memorando de Entendimento sobre os Compromissos em matéria de Serviços Financeiros, que figuram em anexo, consagram os resultados das suas negociações e fazem parte integrante do presente Acto Final.

2 - Ao assinarem o presente Acto Final, os Representantes acordam em:

a) Submeter o Acordo Que Cria a Organização Mundial do Comércio à consideração das respectivas autoridades competentes a fim de obter a aprovação do Acordo em conformidade com os respectivos procedimentos;

b) Adoptar as Declarações e Decisões Ministeriais.

3 - Os Representantes acordam em que é desejável que o Acordo OMC seja aceite por todos os participantes nas negociações comerciais multilaterais do Uruguay Round (a seguir designados «participantes»), a fim de que possa entrar em vigor em 1 de Janeiro de 1995 ou o mais rapidamente possível após essa data. Em conformidade com o último parágrafo da Declaração Ministerial de Punta Del Este, os Ministros reunir-se-ão, o mais tardar no [final de 1994], a fim de decidirem da aplicação, a nível internacional, dos resultados, incluindo a data da sua entrada em vigor.

4 - Os Representantes acordam em que o Acordo OMC no seu conjunto ficará aberto à aceitação, através de assinatura ou de qualquer outro modo, de todos os participantes, em conformidade com o disposto no seu artigo XIV. A aceitação e a entrada em vigor de um acordo comercial plurilateral incluído no Anexo 4 do Acordo OMC serão regidas pelas disposições desse mesmo acordo comercial plurianual.

5 - Antes de aceitarem o Acordo OMC, os participantes que não sejam Parte Contratante no Acordo Geral sobre Pautas Aduaneiras e Comércio devem ter concluído as negociações de adesão ao Acordo Geral e ter-se tornado Parte Contratante nesse Acordo. Relativamente aos participantes que não sejam Parte Contratante no Acordo Geral à data do Acto Final, as listas não são definitivas e serão subsequentemente ultimadas tendo em vista a sua adesão ao Acordo Geral e a aceitação do Acordo OMC.

6 - O presente Acto Final e os textos que figuram nos Anexos que o acompanham serão depositados junto do Director-Geral das Partes Contratantes no Acordo Geral sobre Pautas Aduaneiras e Comércio, que enviará no mais curto prazo de tempo uma cópia autenticada a cada participante.

Feito em Marráquexe, aos 15 de Abril de 1994, num único exemplar, em língua espanhola, francesa e inglesa, fazendo fé qualquer dos textos.

(Lista das assinaturas a incluir no exemplar do Acto Final para assinatura.)

ACORDO QUE CRIA A ORGANIZAÇÃO MUNDIAL DO COMÉRCIO

As Partes no presente Acordo:

Reconhecendo que as suas relações no domínio comercial e económico deveriam ser orientadas tendo em vista a melhoria dos níveis de vida, a realização do pleno emprego e um aumento acentuado e constante dos rendimentos reais e da procura efectiva, bem como o desenvolvimento da produção e do comércio de mercadorias e serviços, permitindo simultaneamente optimizar a utilização dos recursos mundiais em consonância com o objectivo de um desenvolvimento sustentável que procure proteger e preservar o ambiente e aperfeiçoar os meios para atingir esses objectivos de um modo compatível com as respectivas necessidades e preocupações a diferentes níveis de desenvolvimento económico;

Reconhecendo ainda que é necessário envidar esforços positivos no sentido de assegurar que os países em desenvolvimento e, em especial, os países menos desenvolvidos beneficiem de uma parte do crescimento do comércio internacional que corresponda às suas necessidades de desenvolvimento económico;

Desejosas de contribuir para a realização destes objectivos mediante a conclusão de acordos recíprocos e mutuamente vantajosos tendo em vista a redução substancial dos direitos aduaneiros e de outros entraves ao comércio, bem como a eliminação do tratamento discriminatório nas relações comerciais internacionais;

Resolvidas, por conseguinte, a desenvolver um sistema comercial multilateral integrado, mais viável e duradouro, que integre o Acordo Geral sobre Pautas Aduaneiras e Comércio, os resultados dos esforços de liberalização comercial empreendidos no passado e todos os resultados das negociações comerciais multilaterais do Uruguay Round;

Determinados a preservar os princípios fundamentais e a promover a realização dos objectivos subjacentes a este sistema comercial multilateral;

acordam no seguinte:

Artigo I

Criação da Organização

É criada a Organização Mundial do Comércio (a seguir designada «a OMC»).

Artigo II

Âmbito da OMC

1 - A OMC constituirá o enquadramento institucional comum para a condução das relações comerciais entre os seus Membros em questões relativas aos acordos e aos instrumentos jurídicos conexos que figuram nos Anexos do presente Acordo.

2 - Os acordos e os instrumentos jurídicos conexos que figuram nos Anexos 1, 2 e 3 (a seguir designados «acordos comerciais multilaterais») fazem parte integrante do presente Acordo e são vinculativos para todos os Membros.

3 - Os acordos e os instrumentos jurídicos conexos que figuram no Anexo 4 (a seguir designados «acordos comerciais plurilaterais») fazem igualmente parte do presente Acordo para os Membros que os tenham aceitado, sendo vinculativos para esses Membros. Os acordos comerciais plurilaterais não criam obrigações nem direitos para os Membros que não os tenham aceitado.

4 - O Acordo Geral sobre Pautas Aduaneiras e Comércio de 1994, tal como figura no Anexo 1A (a seguir designado «GATT de 1994»), é juridicamente distinto do Acordo Geral sobre Pautas Aduaneiras e Comércio, de 30 de Outubro de 1947, que acompanha o Acto Final adoptado aquando da conclusão da segunda sessão do Comité Preparatório da Conferência das Nações Unidas sobre Comércio e Emprego, tal como posteriormente rectificado ou alterado (a seguir designado «GATT de 1947»).

Artigo III

Funções da OMC

1 - A OMC facilitará a aplicação, gestão e funcionamento do presente Acordo e dos acordos comerciais multilaterais e promoverá a realização dos seus objectivos, constituindo igualmente o enquadramento para a aplicação, gestão e funcionamento dos acordos comerciais plurilaterais.

2 - A OMC constituirá o fórum para as negociações entre os seus Membros no que respeita às suas relações comerciais multilaterais em questões abrangidas pelos acordos que figuram nos anexos ao presente Acordo. A OMC, poderá igualmente constituir um fórum para a realização de outras negociações entre os seus Membros no que respeita às suas relações multilaterais, bem como um enquadramento para a aplicação dos resultados de tais negociações caso a Conferência Ministerial assim o decida.

3 - A OMC assegurará a gestão do Memorando de Entendimento sobre as Regras e Processos Que Regem a Resolução de Litígios (a seguir designado «Memorando de Entendimento sobre Resolução de Litígios» ou «MERL»), que figura no Anexo 2 do presente Acordo.

4 - A OMC assegurará a gestão do Mecanismo de Exame das Políticas Comerciais (a seguir designado «MEPC»), previsto no Anexo 3 do presente Acordo.

5 - A fim de conferir uma maior coerência à elaboração das políticas económicas mundiais, a OMC cooperará, conforme adequado, com o Fundo Monetário Internacional e com o Banco Internacional para a Reconstrução e o Desenvolvimento e respectivas agências.

ARTIGO IV

Estrutura da OMC

1 - Será instituída uma Conferência Ministerial composta por representantes de todos os Membros, que se reunirá, pelo menos, uma vez de dois em dois anos. A Conferência Ministerial exercerá as funções da OMC e tomará as medidas necessárias para o efeito. A Conferência Ministerial será competente para decidir de todas as questões abrangidas por qualquer dos acordos comerciais multilaterais, se nesse sentido for solicitada por um membro, em conformidade com os requisitos específicos em matéria de tomada de decisões previstos no presente Acordo e no acordo comercial multilateral pertinente.

2 - Será instituído um Conselho Geral composto por representantes de todos os Membros, que se reunirá conforme adequado. No intervalo, entre as reuniões da Conferência Ministerial, as suas funções serão exercidas pelo Conselho Geral. O Conselho Geral exercerá igualmente as funções que lhe incumbem por força do presente Acordo. O Conselho Geral estabelecerá o seu regulamento interno e aprovará os regulamentos internos dos comités previstos no n.º 7.

3 - O Conselho Geral reunir-se-á, conforme adequado, para desempenhar funções de Órgão de Resolução de Litígios, tal como previsto no Memorando de Entendimento sobre Resolução de Litígios. O Órgão de Resolução de Litígios poderá ter o seu próprio Presidente e estabelecer o regulamento interno que considere necessário para o cumprimento daquelas funções.

4 - O Conselho Geral reunir-se-á, conforme adequado, para desempenhar as funções de Órgão de Exame das Políticas Comerciais previsto no Mecanismo de Exame das Políticas Comerciais. O Órgão de Exame das Políticas Comerciais poderá ter o seu próprio Presidente e estabelecer o regulamento interno que considere necessário para o cumprimento daquelas funções.

5 - Serão instituídos um Conselho do Comércio de Mercadorias, um Conselho do Comércio de Serviços e um Conselho dos Aspectos dos Direitos de Propriedade Intelectual Relacionados com o Comércio (a seguir designado «Conselho TRIPS»), que funcionarão sob a orientação geral do Conselho Geral. O Conselho do Comércio de Mercadorias supervisionará o funcionamento dos acordos comerciais multilaterais que figura no Anexo 1A. O Conselho do Comércio de Serviços supervisionará o funcionamento do Acordo Geral sobre o Comércio de Serviços (a seguir designado «GATS»). O Conselho TRIPS supervisionará o funcionamento do Acordo sobre os Aspectos dos Direitos de Propriedade Intelectual Relacionados com o Comércio (a seguir designado «Acordo sobre TRIPS»). Estes Conselhos exercerão as funções que lhes forem atribuídas pelos respectivos acordos e pelo Conselho Geral. Estabelecerão os seus regulamentos internos, sob reserva da aprovação do Conselho Geral. Poderão participar nestes Conselhos os representantes de todos os Membros. Os Conselhos reunir-se-ão quando necessário para o exercício das suas funções.

6 - O Conselho do Comércio de Mercadorias, o Conselho do Comércio de Serviços e o Conselho TRIPS estabelecerão órgãos subsidiários de acordo com as necessidades. Estes órgãos subsidiários estabelecerão os respectivos regulamentos internos, sob reserva da aprovação dos respectivos Conselhos.

7 - A Conferência Ministerial estabelecerá um Comité do Comércio e Desenvolvimento, um Comité das Restrições Relacionadas com a Balança de Pagamentos e um Comité do Orçamento, Finanças e Administração, que exercerão as funções que lhes incumbem por força do presente Acordo e dos acordos comerciais multilaterais, bem como quaisquer outras funções que lhes sejam atribuídas pelo Conselho Geral, podendo estabelecer outros comités com as competências que considerarem adequadas. No âmbito das suas funções, o Comité do Comércio e Desenvolvimento examinará periodicamente as disposições especiais dos acordos comerciais multilaterais a favor dos países menos desenvolvidos Membros e apresentará relatórios ao Conselho Geral para que este tome as medidas que considerar adequadas. Poderão participar nos comités os representantes de todos os Membros.

8 - Os órgãos previstos nos acordos comerciais plurilaterais exercerão as funções que lhes incumbem por força dos referidos acordos e funcionarão no quadro institucional da OMC. Estes órgãos informarão periodicamente o Conselho Geral das suas actividades.

Artigo V

Relações com outras organizações

1 - O Conselho Geral tomará as medidas adequadas para assegurar uma cooperação eficaz com outras organizações intergovernamentais cujas competências estejam relacionadas com as da OMC.

2 - O Conselho Geral poderá tomar as medidas adequadas tendo em vista a consulta e a cooperação com organizações não governamentais que se ocupem de questões relacionadas com as da OMC.

Artigo VI

Secretariado

1 - É criado um Secretariado da OMC (a seguir designado «o Secretariado»), dirigido por um Director-Geral.

2 - A Conferência Ministerial nomeará o Director-Geral e adoptará as regras que definem as respectivas competências, deveres, condições para o exercício de funções e duração do mandato.

3 - O Director-Geral nomeará os membros do pessoal do Secretariado e determinará os seus deveres e condições para o exercício de funções, em conformidade com as regras adoptadas pela Conferência Ministerial.

4 - As funções do Director-Geral e do pessoal do Secretariado terão um carácter exclusivamente internacional. No cumprimento dos seus deveres, o Director-Geral e o pessoal do Secretariado não solicitarão nem aceitarão instruções de qualquer Governo ou autoridade estranha à OMC. O Director-Geral e o pessoal do Secretariado abster-se-ão de qualquer acção que seja incompatível com o seu estatuto de funcionários internacionais. Os Membros da OMC respeitarão o carácter internacional das funções do Director-Geral e do pessoal do Secretariado e não os procurarão influenciar no cumprimento dos seus deveres.

Artigo VII

Orçamento e contribuições

1 - O Director-Geral apresentará ao Comité do Orçamento, Finanças e Administração as previsões orçamentais e as demonstrações financeiras anuais da OMC. O Comité do Orçamento, Finanças e Administração examinará as previsões orçamentais e as demonstrações financeiras anuais apresentadas pelo Director-Geral e formulará as recomendações pertinentes ao Conselho Geral. As previsões orçamentais anuais serão submetidas à aprovação do Conselho Geral.

2 - O Comité do Orçamento, Finanças e Administração proporá ao Conselho Geral regulamentação financeira que incluirá disposições definindo:

a) A tabela das contribuições com a repartição das despesas da OMC entre os seus Membros; e

b) As medidas a tomar relativamente aos Membros com contribuições em atraso.

A regulamentação financeira basear-se-á, na medida do possível, nas regras e práticas do GATT de 1947.

3 - O Conselho Geral adoptará a regulamentação financeira e as previsões orçamentais anuais por uma maioria de dois terços que inclua mais de metade dos Membros da OMC.

4 - Os Membros pagarão prontamente à OMC a respectiva contribuição correspondente à sua parte nas despesas da OMC, em conformidade com a regulamentação financeira adoptada pelo Conselho Geral.

Artigo VIII

Estatuto da OMC

1 - A OMC será doptada de personalidade jurídica, sendo-lhe concedida pelos seus Membros a capacidade jurídica que se afigure necessária para o exercício das suas funções.

2 - Os Membros da OMC conceder-lhe-ão os privilégios e imunidades necessários para o exercício das suas funções.

3 - Os Membros da OMC concederão igualmente aos funcionários desta última e aos representantes dos Membros os privilégios e imunidades necessários para o exercício independente das suas funções relacionadas com a OMC.

4 - Os privilégios e imunidades a conceder por um Membro à OMC, aos seus funcionários e aos representantes dos seus Membros serão análogos aos privilégios e imunidades previstos na Convenção sobre Privilégios e Imunidades das Instituições Especializadas, aprovada pela Assembleia Geral das Nações Unidas em 21 de Novembro de 1947.

5 - A OMC poderá concluir um acordo de sede.

Artigo IX

Tomada de decisões

1 - A OMC manterá a prática da tomada de decisões por consenso seguida por força do GATT de 1947 (ver nota 1). Salvo disposição em contrário, nos casos em que não for possível chegar a uma decisão por consenso, a questão em causa será decidida por votação. Nas reuniões da Conferência Ministerial e do Conselho Geral, cada Membro da OMC disporá de um voto. Nos casos em que as Comunidades Europeias exerçam o seu direito de voto, disporão de um número de votos igual ao número dos seus Estados membros(ver nota 2) que sejam Membros da OMC. As decisões da Conferência Ministerial e do Conselho Geral serão adoptadas por maioria dos votos expressos, salvo disposição em contrário prevista no presente Acordo ou no acordo comercial multilateral pertinente (ver nota 3).

2 - Incumbe exclusivamente à Conferência Ministerial e ao Conselho Geral a adoptação de interpretações do presente Acordo e dos acordos comerciais multilaterais. No caso da interpretação de um acordo comercial multilateral que figure no Anexo 1, essa competência será exercida com base numa recomendação do Conselho que supervisiona o funcionamento desse acordo. A decisão de adoptar uma interpretação será tomada por maioria de três quartos dos Membros. O disposto no presente número não será utilizado de um modo que prejudique as disposições em matéria de alteração previstas no artigo X.

3 - Em circunstâncias excepcionais e salvo disposição em contrário do presente número, a Conferência Ministerial poderá decidir dispensar um Membro de uma das obrigações que lhe incumbem por força do presente Acordo ou de um dos acordos comerciais multilaterais, desde que tal decisão seja tomada por três quartos (ver nota 4) dos Membros.

a) Qualquer pedido de derrogação respeitante ao presente Acordo será submetido à apreciação da Conferência Ministerial, em conformidade com a prática em matéria de tomada de decisões por consenso. A Conferência Ministerial fixará um prazo, não superior a 90 dias, para examinar o pedido. Se não se chegar a consenso dentro desse prazo, qualquer decisão de concessão de uma derrogação será tomada por três quartos (ver nota 4) dos Membros.

b) Qualquer pedido de derrogação respeitante aos acordos comerciais multilaterais que figuram nos Anexos 1A, 1B ou 1C e respectivos anexos será inicialmente submetido à apreciação do Conselho do Comércio de Mercadorias, do Conselho do Comércio de Serviços ou do Conselho dos TRIPS, respectivamente, dentro de um prazo não superior a 90 dias. No termo desse prazo, o Conselho em causa apresentará um relatório à Conferência Ministerial.

4 - Qualquer decisão tomada pela Conferência Ministerial relativamente à concessão de uma derrogação deverá indicar as circunstâncias excepcionais que justificam a decisão, as modalidades e condições que regem a aplicação da derrogação, bem como a data de cessação da derrogação. Qualquer derrogação concedida por um período superior a um ano será examinada pela Conferência Ministerial, o mais tardar, um ano após ter sido concedida e, posteriormente, todos os anos até ao termo da sua vigência. Aquando de cada exame, a Conferência Ministerial verificará se continuam reunidas as condições excepcionais que justificam a derrogação e se as modalidades e condições que lhe estão associadas foram respeitadas. Com base no reexame anual, a Conferência Ministerial pode prorrogar, alterar ou pôr termo à derrogação.

5 - As decisões a título de um acordo comercial plurilateral, incluindo quaisquer decisões relativas a interpretações e a derrogações, serão regidas pelas disposições desse acordo.

(nota 1) Considera-se que o organismo em causa tomou uma decisão por consenso sobre uma questão que lhe foi apresentada, se nenhum Membro presente na reunião no decurso da qual a referida decisão foi tomada não se tiver oposto formalmente à decisão proposta.

(nota 2) O número de votos das Comunidades Europeias e dos seus Estados membros não ultrapassará, em caso algum, o número dos Estados membros das Comunidades Europeias.

(nota 3) As decisões do Conselho Geral, quando este se reunir na qualidade de Órgão de Resolução de Litígios, serão tomadas unicamente em conformidade com o disposto no n.º 4 do artigo 2.º do Memorando de Entendimento sobre Resolução de Litígios.

(nota 4) Qualquer decisão de concessão de uma derrogação respeitante a uma obrigação sujeita a um período de transição ou a um prazo para aplicação por etapas que o Membro requerente não tenha cumprido no final do período ou do prazo em questão será unicamente tomada por consenso.

Artigo X

Alterações

1 - Qualquer Membro da OMC pode introduzir uma proposta de alteração das disposições do presente Acordo ou dos acordos comerciais multilaterais que figuram no Anexo 1, apresentando a referida proposta à Conferência Ministerial. Os Conselhos enumerados no n.º 5 do artigo IV podem igualmente apresentar à Conferência Ministerial propostas de alteração das disposições dos correspondentes acordos comerciais multilaterais que figuram no Anexo 1, cujo funcionamento supervisionem. Durante um prazo de 90 dias a contar da apresentação formal da proposta à Conferência Ministerial, a menos que esta decida um prazo mais longo, qualquer decisão de Conferência Ministerial no sentido de apresentar aos Membros, para aceitação, a alteração proposta, será tomada por consenso. A menos que seja aplicável o disposto nos n.os 2, 5 ou 6, esta decisão precisará se é aplicável o disposto nos n.os 3 ou 4. Se se chegar a consenso, a Conferência Ministerial apresentará imediatamente a alteração proposta aos Membros, para aceitação. Caso, dentro do prazo estabelecido, não seja possível chegar a consenso numa reunião da Conferência Ministerial, esta última decidirá, por maioria de dois terços dos Membros, da apresentação, ou não, da alteração proposta aos Membros, para aceitação. Sob reserva do disposto nos n.os 2, 5 e 6, à alteração proposta é aplicável o disposto no n.º 3, a menos que a Conferência Ministerial decida, por maioria de três quartos dos Membros, que é aplicável o disposto no n.º 4.

2 - As alterações das disposições do presente artigo e das disposições dos artigos seguintes produzirão efeitos unicamente após terem sido aceites por todos os Membros:

Artigo IX do presente Acordo;

Artigos I e II do GATT de 1994;

N.º 1 do artigo II do GATS;

Artigo 4.º do Acordo TRIPS.

3 - As alterações das disposições do presente Acordo, ou dos acordos comerciais multilaterais que figuram nos Anexos 1A e 1C, que não as enumeradas nos n.os 2 e 6, susceptíveis de alterar os direitos e obrigações dos Membros, produzirão efeitos, no que respeita aos Membros que as tenham aceitado, a partir do momento em que tenham sido aceites por dois terços dos Membros e, posteriormente, no respeita a qualquer outro Membro, a partir do momento em que este as tenha aceitado. A Conferência Ministerial poderá decidir, por maioria de três quartos dos Membros, que uma alteração adoptada ao abrigo do disposto no presente número é de tal natureza que qualquer Membro que não a tenha aceitado, num prazo que a Conferência Ministerial fixará para cada caso, poderá retirar-se do Acordo OMC ou continuar a ser Membro com o consentimento da Conferência Ministerial.

4 - As alterações das disposições do presente Acordo ou dos acordos comerciais multilaterais que figuram nos Anexos 1A e 1C, que não as numeradas nos n.os 2 e 6, não susceptíveis de alterar os direitos ou as obrigações dos Membros, produzirão efeitos para todos os Membros a partir do momento em que tenham sido aceites por três quartos dos Membros.

5 - Salvo nos casos previstos no n.º 2, as alterações das partes I, II e III do GATS e dos respectivos anexos produzirão efeitos, no que respeita aos Membros que os tenham aceitado, a partir do momento em que tenham sido aceites por dois terços dos Membros e, posteriormente, no que respeita a cada Membro, a partir do momento em que o mesmo as tenha aceitado. A Conferência Ministerial poderá decidir, por maioria de três quartos dos Membros, que uma alteração que produz efeitos por força da disposição anterior é de tal natureza que um Membro que não a tenha aceitado num prazo que a Conferência Ministerial fixará para cada caso poderá retirar-se do Acordo OMC ou continuar a ser Membro com o consentimento da Conferência Ministerial. As alterações das partes IV, V e VI do GATS e respectivos anexos produzirão efeitos, para todos os Membros, a partir do momento em que tenham sido aceites por dois terços dos Membros.

6 - Não obstante as outras disposições do presente artigo, as alterações do Acordo TRIPS que preencham os requisitos do n.º 2 do seu artigo 71.º poderão ser adoptadas pela Conferência Ministerial sem qualquer outro processo de aceitação formal.

7 - Qualquer Membro que aceite uma alteração do presente Acordo ou de um acordo comercial multilateral que figure no Anexo 1 depositará um instrumento de aceitação junto do Director-Geral da OMC, dentro do prazo de aceitação fixado pela Conferência Ministerial.

8 - Qualquer Membro da OMC poderá apresentar uma proposta de alteração de disposições dos acordos comerciais multilaterais que figuram nos Anexos 2 e 3, submetendo tal proposta à apreciação da Conferência Ministerial. A decisão de aprovação de alterações do acordo comercial multilateral que figura no Anexo 2 será tomada por consenso, produzindo tais alterações efeitos, para todos os Membros, a partir do momento em que tenham sido aprovadas pela Conferência Ministerial. As decisões de aprovação de alterações do acordo comercial multilateral que figura no Anexo 3 produzirão efeitos, para todos os Membros, a partir do momento em que tenham sido aprovadas pela Conferência Ministerial.

9 - A pedido dos Membros parte num acordo comercial, a Conferência Ministerial poderá decidir unicamente por consenso, aditar tal acordo ao Anexo 4. A pedido dos Membros parte num acordo comercial plurilateral, a Conferência Ministerial poderá decidir suprimir esse Acordo do Anexo 4.

10 - As alterações introduzidas num acordo comercial plurilateral serão regidas pelas disposições desse mesmo acordo.

Artigo XI

Membros originais

1 - As Partes Contratantes no GATT de 1947 à data da entrada em vigor do presente Acordo e as Comunidades Europeias, que aceitem o presente Acordo e os acordos comerciais multilaterais e para as quais são anexadas listas de concessões e de compromissos ao GATT de 1994, bem como listas de compromissos específicos ao GATS, tornam-se Membros originais da OMC.

2 - Os países menos desenvolvidos reconhecidos como tal pelas Nações Unidas serão unicamente obrigados a assumir compromissos e a fazer concessões na medida em que tal seja compatível com as respectivas necessidades financeiras, comerciais e de desenvolvimento ou com as respectivas capacidades administrativas e institucionais.

Artigo XII

Adesão

1 - Qualquer Estado ou território aduaneiro distinto que possua plena autonomia na condução das suas relações comerciais externas e em relação a outras questões previstas no presente Acordo e nos acordos comerciais multilaterais pode aderir ao presente Acordo, em condições a acordar entre ele e a OMC. Tal adesão é aplicável relativamente ao presente Acordo e aos acordos comerciais multilaterais que o acompanham.

2 - As decisões em matéria de adesão serão tomadas pela Conferência Ministerial. A Conferência Ministerial aprovará o acordo sobre as modalidades de adesão por uma maioria de dois terços dos Membros da OMC.

3 - A adesão a um acordo comercial plurilateral será regida pelas disposições desse mesmo acordo.

Artigo XIII

Não aplicação dos acordos comerciais multilaterais entre determinados Membros

1 - O presente Acordo e os acordos comerciais multilaterais que figuram nos Anexos 1 e 2 não são aplicáveis entre um Membro e qualquer outro Membro se, quando um deles se tornar Membro, não aceitar tal aplicação.

2 - O disposto no n.º 1 só pode ser invocado entre Membros originais da OMC que eram Parte Contratante no GATT de 1947 no caso de o artigo XXXV desse acordo já ter sido anteriormente invocado e estar em vigor entre essas Partes Contratantes no momento da entrada em vigor do presente Acordo.

3 - O disposto no n.º 1 é aplicável entre um Membro e um outro Membro que tenha aderido a título do artigo XII unicamente se o Membro que não aceita a aplicação tiver desse facto notificado a Conferência Ministerial antes de esta ter aprovado o acordo sobre as modalidades de adesão.

4 - A pedido de um Membro, a Conferência Ministerial poderá examinar a aplicação do presente artigo em casos especiais e formular as recomendações adequadas.

5 - A não aplicação de um acordo comercial plurilateral entre partes nesse acordo será regida pelas disposições desse mesmo acordo.

Artigo XIV

Aceitação, entrada em vigor e depósito

1 - O presente Acordo ficará aberto à aceitação, através de assinatura ou de qualquer outro modo, das Partes Contratantes no GATT de 1947 e das Comunidades Europeias, que são elegíveis para se tornarem Membros originais da OMC em conformidade com o disposto no artigo XI do presente Acordo. Tal aceitação é aplicável ao presente Acordo e aos acordos comerciais multilaterais que o acompanham. O presente Acordo e os acordos comerciais multilaterais que o acompanham entrarão em vigor na data fixada pelos Ministros, em conformidade com o n.º 3 do Acto Final que consagra os resultados das negociações comerciais multilaterais do Uruguay Round e ficará aberto à aceitação por um período de dois anos a contar dessa data, salvo decisão em contrário dos Ministros. Uma aceitação que ocorra após a entrada em vigor do presente Acordo entrará em vigor 30 dias após a referida aceitação.

2 - Um Membro que aceite o presente Acordo após a sua entrada em vigor aplicará as concessões e cumprirá as obrigações previstas nos acordos comerciais multilaterais que devem ser aplicadas e cumpridas durante um período com início na data da entrada em vigor do presente Acordo, como se o tivesse aceitado à data da sua entrada em vigor.

3 - Até à entrada em vigor do presente Acordo, o texto do presente Acordo e o dos acordos comerciais multilaterais serão depositados junto do Director-Geral das Partes Contratantes no GATT de 1947. O Director-Geral enviará, no mais curto prazo de tempo, a cada Estado e às Comunidades Europeias, que tenham aceitado o presente Acordo, uma cópia autenticada do presente Acordo e dos acordos comerciais multilaterais, bem como uma notificação de cada aceitação. O presente Acordo e os acordos comerciais multilaterais, bem como qualquer alteração neles introduzida, serão depositados junto do Director-Geral da OMC na data da entrada em vigor do presente Acordo.

4 - A aceitação e a entrada em vigor de um acordo comercial plurilateral serão regidas pelas disposições desse mesmo acordo. Tais acordos serão depositados junto do Director-Geral das Partes Contratantes no GATT de 1947. Na data da entrada em vigor do presente Acordo, tais acordos serão depositados junto do Director-Geral da OMC.

Artigo XV

Recesso

1 - Qualquer Membro pode retirar-se do presente Acordo. Tal recesso é simultaneamente aplicável ao presente Acordo e aos acordos comerciais multilaterais e produz efeitos no termo de um prazo de seis meses a contar da data em que o Director-Geral da OMC tiver recebido a notificação escrita do recesso.

2 - O recesso de um acordo comercial plurilateral será regido pelas disposições desse mesmo acordo.

Artigo XVI

Disposições diversas

1 - Salvo disposição em contrário do presente Acordo ou dos acordos comerciais multilaterais, a OMC será regida pelas decisões, procedimentos e práticas habituais seguidas pelas Partes Contratantes no GATT de 1947 e pelos órgãos criados no âmbito do GATT de 1947.

2 - Na medida do possível, o Secretariado do GATT de 1947 tornar-se-á o Secretariado da OMC e o Director-Geral das Partes Contratantes no GATT de 1947 exercerá as funções de Director-Geral da OMC até que a Conferência Ministerial nomeie um Director-Geral em conformidade com o disposto no n.º 2 do artigo VI do presente Acordo.

3 - Em caso de conflito entre uma disposição do presente Acordo e uma disposição de um dos acordos comerciais multilaterais, prevalece a disposição do presente Acordo relativamente ao objecto do conflito.

4 - Cada Membro assegurará a conformidade das suas disposições legislativas, regulamentares e administrativas com as suas obrigações, tal como enunciadas nos acordos que figuram em anexo.

5 - Não poderão ser formuladas reservas relativamente a nenhuma disposição do presente Acordo. Só poderão ser formuladas reservas relativamente a disposições dos acordos comerciais multilaterais na medida do previsto nesses acordos. As reservas respeitantes a uma disposição de um acordo comercial plurilateral serão regidas pelas disposições desse acordo.

6 - O presente Acordo será registado em conformidade com as disposições do artigo 102 da Carta das Nações Unidas.

Feito em Marráquexe em 15 de Abril de 1994, num único exemplar, em língua espanhola, francesa e inglesa, fazendo fé qualquer dos textos.

Notas explicativas:

Os termos «país» ou «países», tal como utilizados no presente Acordo e nos acordos comerciais multilaterais, devem ser interpretados no sentido de incluir qualquer território aduaneiro distinto que seja Membro da OMC.

No caso de um território aduaneiro distinto Membro da OMC, sempre que uma expressão utilizada no presente Acordo e nos acordos comerciais multilaterais seja acompanhada do termo «nacional», tal expressão será interpretada, salvo indicação em contrário, como respeitando a esse território aduaneiro.

ANEXO 1

ANEXO 1A

ACORDOS MULTILATERAIS SOBRE O COMÉRCIO DE MERCADORIAS

Nota interpretativa geral do Anexo 1A. - Em caso de conflito entre uma disposição do Acordo Geral sobre Pautas Aduaneiras e Comércio de 1994 e uma disposição de um ouro acordo que figure no Anexo 1A do Acordo Que Cria a Organização Mundial do Comércio (designado por «Acordo OMC» nos acordos que figuram no Anexo 1A), prevalecerá a disposição do outro acordo na medida do conflito.

ACORDO GERAL SOBRE PAUTAS ADUANEIRAS COMÉRCIO DE 1994

1 - O Acordo Geral sobre Pautas Aduaneiras e Comércio de 1994 (o «GATT de 1994») será constituído:

a) Pelas disposições do Acordo Geral sobre Pautas Aduaneiras e Comércio, de 30 de Outubro de 1947, anexado ao Acto Final adoptado aquando da conclusão da Segunda Sessão do Comité Preparatório da Conferência das Nações Unidas sobre Comércio e Emprego (com exclusão do Protocolo de Aplicação Provisória), tal como rectificado ou alterado pelas disposições dos instrumentos jurídicos que entraram em vigor antes da data da entrada em vigor do Acordo OMC;

b) Pelas disposições dos instrumentos jurídicos a seguir indicados que entraram em vigor por força do GATT de 1947 antes da data da entrada em vigor do Acordo OMC:

i) Protocolos e certificações respeitantes a concessões pautais;

ii) Protocolos de adesão [com exclusão das disposições a) relativas à aplicação provisória e à denúncia da aplicação provisória e b) que previam a aplicação provisória da parte II do GATT de 1947 na medida do possível de um modo compatível com a legislação em vigor à data da entrada em vigor do Protocolo];

iii) Decisões sobre as derrogações concedidas ao abrigo do artigo XXV do GATT de 1947, ainda em vigor à data da entrada em vigor do Acordo OMC (ver nota 1);

iv) Outras decisões das Partes Contratantes no GATT de 1947;

c) Os memorandos de entendimento a seguir indicados:

i) Memorando de Entendimento sobre a Interpretação do N.º 1, Alínea b), do Artigo II do Acordo Geral sobre Pautas Aduaneiras e Comércio de 1994;

ii) Memorando de Entendimento sobre a Interpretação do Artigo XVII do Acordo Geral sobre Pautas Aduaneiras e Comércio de 1994;

iii) Memorando de Entendimento sobre as Disposições Relativas à Balança de Pagamentos do Acordo Geral sobre Pautas Aduaneiras e Comércio de 1994;

iv) Memorando de Entendimento sobre a Interpretação do Artigo XXIV do Acordo Geral sobre Pautas Aduaneiras e Comércio de 1994;

v) Memorando de Entendimento Respeitante às Derrogações às Obrigações Decorrentes do Acordo Geral sobre Pautas Aduaneiras e Comércio de 1994;

vi) Memorando de Entendimento sobre a Interpretação do Artigo XXVIII do Acordo Geral sobre Pautas Aduaneiras e Comércio de 1994;

d) Protocolo de Marráquexe anexo ao GATT de 1994.

(nota 1) As derrogações abrangidas por esta disposição figuram na nota de pé de página n.º 7 das páginas 11 e 12 da parte II do documento MTN/FA, de 15 de Dezembro de 1993. A Conferência Ministerial estabelecerá, aquando da sua primeira sessão, uma lista revista das derrogações abrangidas por esta disposição que inclua todas as derrogações concedidas por força do GATT de 1947 após 15 de Dezembro de 1993 e antes da data da entrada em vigor do Acordo OMC e que exclua as derrogações que tenham caducado até essa data.

2 - Notas explicativas:

a) Nas disposições do GATT de 1994, por «parte contratante» deve entender-se «Membro». Pelas expressões «parte contratante menos desenvolvida» e «parte contratante desenvolvida» dever entender-se «país em desenvolvimento Membro» e «país desenvolvido Membro». Pela expressão «Secretário Executivo» dever entender-se «Director-Geral da OMC»;

b) Nos n.os 1, 2 e 8 do artigo XV e no artigo XXXVIII, bem como nas notas relativas aos artigos XII e XVII e nas disposições relativas aos acordos cambiais especiais que figuram nos n.os 2, 3, 6, 7 e 9 do artigo XV do GATT de 1994, as referências às

Partes Contratantes agindo conjuntamente devem ser entendidas como referências à OMC. As outras funções que as disposições do GATT de 1994 conferem às Partes Contratantes agindo conjuntamente serão atribuídas pela Conferência Ministerial;

c):

i) O texto do GATT de 1994 faz fé em língua espanhola, francesa e inglesa;

ii) O texto do GATT de 1994 em língua francesa será objecto das rectificações terminológicas indicadas no Anexo A do documento MTN.TNC/41;

iii) texto do GATT de 1994 em língua espanhola será o texto que figura no volume IV da série Instrumentos de Base e Documentos Seleccionados, sob reserva das rectificações terminológicas indicadas no Anexo B, do documento MTN.TNC/41.

3 - a) As disposições da parte II do GATT de 1994 não são aplicáveis às medidas adoptadas por um Membro por força de determinada legislação, por ele promulgada antes de se ter tornado Parte Contratante no GATT de 1947, que proíba a utilização, a venda ou a locação financeira de navios construídos ou reconstruídos no estrangeiro para utilizações comerciais entre pontos situados em águas nacionais ou em águas de uma zona económica exclusiva. Esta isenção é aplicável: a) à continuação ou renovação automática de uma disposição que não seja conforme a essa legislação, e b) à alteração de uma disposição que não seja conforme a essa legislação na medida em que a alteração não diminua a conformidade da disposição com a parte II do GATT de 1947. Esta isenção limita-se às medidas adoptadas por força da legislação acima descrita que seja notificada e especificada antes da data da entrada em vigor do Acordo OMC. Caso essa legislação seja posteriormente alterada, de modo a diminuir a sua conformidade com a parte II do GATT de 1994, deixará de satisfazer as condições requeridas para ser abrangida pelo presente ponto.

b) A Conferência Ministerial reexaminará esta isenção o mais tardar cinco anos após a data da entrada em vigor do Acordo OMC e posteriormente de dois em dois anos enquanto a isenção estiver em vigor, a fim de determinar se subsistem as condições que justificaram a isenção.

c) Um Membro cujas medidas sejam abrangidas por esta isenção apresentará anualmente uma notificação estatística pormenorizada que conterá uma média móvel de cinco anos dos fornecimentos efectivos e previstos dos navios em questão, bem como informações adicionais sobre a utilização, a venda, a locação financeira ou a reparação dos navios em questão abrangidos por esta isenção.

d) Um Membro que considere que esta isenção é aplicada de um modo que justifica uma limitação recíproca e proporcional de utilização, venda, locação financeira ou reparação dos navios construídos nos territórios do Membro que invoca a isenção pode introduzir tal limitação sob reserva de notificar previamente a Conferência Ministerial.

e) Esta isenção não prejudica soluções relativas a aspectos específicos da legislação abrangida por esta isenção negociadas no âmbito de acordos sectoriais ou noutros fóruns.

MEMORANDO DE ENTENDIMENTO SOBRE A INTERPRETAÇÃO DO N.º 1, ALÍNEA B), DO ARTIGO II DO ACORDO GERAL SOBRE PAUTAS ADUANEIRAS E COMÉRCIO DE 1994.

Os Membros acordam no seguinte:

1 - A fim de assegurar a transparência das obrigações e direitos jurídicos decorrentes do n.º 1, alínea b), do artigo II, a natureza e o nível dos «outros direitos ou imposições» cobrados sobre posições pautais consolidadas, tal com mencionado na referida disposição, serão inscritos nas listas de concessões anexas ao GATT de 1994, relativamente à posição pautal a que se aplicam. Entende-se que tal inscrição não altera o carácter jurídico dos «outros direitos ou imposições».

2 - A data a partir da qual os «outros direitos ou imposições» serão consolidados, para efeitos do artigo II, será 15 de Abril de 1994. Os «outros direitos ou imposições» serão, pois, inscritos nas listas aos níveis aplicáveis nessa data. Aquando de uma posterior renegociação de uma concessão ou da negociação de uma nova concessão, a data aplicável relativamente à posição pautal em questão será a data da inclusão da nova concessão na lista adequada. Contudo, a data do instrumento pelo qual uma concessão relativa a uma dada posição pautal foi pela primeira vez incluída no GATT de 1947 ou no GATT de 1994 continuará igualmente a ser inscrita na coluna 6 das listas em amovíveis.

3 - Os «outros direitos ou imposições» serão inscritos relativamente a todas as consolidações pautais.

4 - No caso de uma posição pautal já ter sido objecto de uma concessão, o nível dos «outros direitos ou imposições» inscritos na lista adequada não será superior ao nível aplicável no momento da primeira incorporação da concessão nessa lista. Os Membros terão a faculdade de contestar a existência de «outros direitos ou imposições», com base no facto de esses «outros direitos ou imposições» não existirem no momento da consolidação inicial da posição em questão, bem como a concordância do nível inscrito dos «outros direitos ou imposições» com o nível anteriormente consolidado, durante um período de três anos a contar da data de entrada em vigor do Acordo OMC ou três anos após a data do depósito junto do Director-Geral da OMC do instrumento que incorpora a lista em questão no GATT de 1994, caso esta data seja posterior.

5 - A inscrição de «outros direitos ou imposições» nas listas não prejudica a sua compatibilidade com os direitos e obrigações decorrentes do GATT de 1994, que não os referidos no ponto 4. Os Membros têm o direito de, a qualquer momento, contestar a compatibilidade de quaisquer «outros direitos ou imposições» com tais obrigações.

6 - Para efeitos do presente Memorando de Entendimento, são aplicáveis as disposições dos artigos XXII e XXIII do GATT de 1994, tal como precisadas e aplicadas pelo Memorando de Entendimento sobre Resolução de Litígios.

7 - Os «outros direitos ou imposições» que não figurem numa lista no momento do depósito do instrumento de incorporação da lista em questão no GATT de 1994, até à data de entrada em vigor do Acordo OMC, junto do Director-Geral das Partes Contratantes no GATT de 1947 e, posteriormente, junto do Director-Geral da OMC, não serão subsequentemente aditados a essa lista, e quaisquer «outros direitos ou imposições» inscritos a um nível inferior ao que estava em vigor na data aplicável não serão restabelecidos a esse nível, a menos que tais aditamentos ou alterações sejam introduzidos num prazo de seis meses a contar do depósito do instrumento.

8 - A decisão referida no ponto 2 relativa à data aplicável relativamente a cada concessão para efeitos do n.º 1, alínea b), do artigo II do GATT de 1994 substitui a decisão relativa à data aplicável adoptada em 26 de Março de 1980 (BISD, 27S/24).

MEMORANDO DE ENTENDIMENTO SOBRE A INTERPRETAÇÃO DO ARTIGO XVII DO ACORDO GERAL SOBRE PAUTAS ADUANEIRAS E COMÉRCIO DE 1994.

Os Membros:

Verificando que o artigo XVII prevê as obrigações dos Membros no que respeita às actividades das empresas comerciais do Estado referidas no n.º 1 do artigo XVII, que devem ser conformes aos princípios gerais de não discriminação estabelecidos no GATT de 1994 no que respeita às medidas de ordem legislativa ou administrativa que afectam as importações ou as exportações efectuadas por operadores privados:

Verificando ainda que os Membros estão sujeitos às obrigações decorrentes do GATT de 1994 no que respeita às medidas de ordem legislativa ou administrativa que afectam as empresas comerciais do Estado;

Reconhecendo que o presente Memorando de Entendimento não prejudica as disciplinas de fundo previstas no artigo XVII;

acordam no seguinte:

1 - A fim de assegurar a transparência das actividades das empresas comerciais do Estado, os Membros notificarão ao Conselho do Comércio de Mercadorias as empresas que correspondam à definição seguidamente apresentada, tendo em vista a realização de um exame pelo grupo de trabalho criado por força do ponto 5:

Empresas públicas e privadas, incluindo os institutos de comércio, a que tenham sido concedidos direitos ou privilégios exclusivos ou especiais, incluindo poderes legais ou constitucionais, no exercício dos quais influenciem, através das suas compras ou vendas, o nível ou a orientação das importações ou das exportações.

Este requisito de notificação não é aplicável às importações de produtos para consumo imediato ou final dos poderes públicos ou de empresas tal como acima definidas ou que não sejam de outro modo revendidos ou utilizados no fabrico de mercadorias destinadas a venda.

2 - Cada Membro deve proceder a um exame da sua política no que respeita à comunicação ao Conselho do Comércio de Mercadorias de notificações relativas a empresas comerciais do Estado, tendo em conta as disposições do presente Memorando de Entendimento. Ao efectuar tal exame, cada Membro deve ter em conta a necessidade de assegurar o máximo de transparência possível das suas notificações, de modo a permitir uma apreciação clara do modo de funcionamento das empresas objecto das notificações e do efeito das suas actividades no comércio internacional.

3 - As notificações devem ser efectuadas em conformidade com o questionário sobre o comércio de Estado aprovado em 24 de Maio de 1960 (BISD/9S/184-185), ficando entendido que os Membros devem notificar as empresas referidas no ponto 1, independentemente do facto de terem, ou não, sido efectivamente realizadas importações ou exportações.

4 - Qualquer Membro que tenha razões para crer que um outro Membro não cumpriu de modo adequado a sua obrigação de notificação pode suscitar tal questão com o Membro em causa. Se a questão não for satisfatoriamente resolvida, pode apresentar uma contranotificação ao Conselho do Comércio de Mercadorias, a fim de ser apreciada pelo grupo de trabalho criado por força do ponto 5, informando simultaneamente o Membro em questão.

5 - Será criado um grupo de trabalho, em nome do Conselho do Comércio de Mercadorias, encarregado de examinar as notificações e as contranotificações. À luz desse exame, e sem prejuízo do disposto no n.º 4, alínea c), do artigo XVII, o Conselho do Comércio de Mercadorias pode formular recomendações relativamente à adequação das notificações e à necessidade de informações complementares. O grupo de trabalho examinará igualmente, à luz das notificações recebidas, a adequação do questionário acima referido sobre comércio de Estado e o leque de empresas comerciais do estado que foram objecto de notificações em conformidade com o ponto 1. Elaborará igualmente uma lista exemplificativa dos tipos de relações entre poderes públicos e empresas e dos tipos de actividades desenvolvidas por estas últimas que possam ser pertinentes para efeitos da aplicação do disposto no artigo XVII. Entende-se que o Secretariado da OMC fornecerá ao grupo de trabalho um documento de informação geral sobre as actividades das empresas comerciais do estado relacionadas com o comércio internacional. A participação no grupo de trabalho estará aberta a todos os Membros que manifestem o desejo de nele participarem. O grupo de trabalho reunir-se-á no prazo de um ano a contar da entrada em vigor do Acordo OMC e, posteriormente, pelo menos uma vez por ano. O grupo de trabalho apresentará anualmente um relatório ao Conselho do Comércio de Mercadorias (ver nota 1).

(nota 1) As actividades deste grupo de trabalho serão coordenadas com as do grupo de trabalho previsto na secção III da Decisão Ministerial Relativa aos Procedimentos de Notificação.

MEMORANDO DE ENTENDIMENTO SOBRE AS DISPOSIÇÕES DO ACORDO GERAL SOBRE PAUTAS ADUANEIRAS E COMÉRCIO DE 1994 RELATIVAS À BALANÇA DE PAGAMENTOS.

Os Membros:

Tendo em conta as disposições do artigo XII e da secção B do artigo XVIII do GATT de 1994, bem como a Declaração de 28 de Novembro de 1979, relativa às medidas comerciais adoptadas, por razões relacionadas com a balança de pagamentos (BISD 26S/205-209, designada por «Declaração de 1979» no presente Memorando de Entendimento), e a fim de clarificar tais disposições (ver nota 2);

(nota 2) Nenhuma disposição do presente Memorando de Entendimento tem por objectivo alterar os direitos e obrigações dos Membros decorrentes do artigo XII ou da secção B do artigo XVIII do GATT de 1994. As disposições dos artigos XXII e XXIII do GATT de 1994, tal como precisadas e aplicadas pelo Memorando de Entendimento sobre Resolução de Litígios, poderão ser invocadas relativamente a qualquer questão suscitada pela aplicação de medidas de restrição à importação, adoptadas por razões que se prendem com a balança de pagamentos.

acordam no seguinte:

Aplicação de medidas

1 - Os Membros confirmam o seu compromisso de anunciar publicamente, logo que possível, os calendários para a eliminação das medidas de restrição das importações, adoptadas para efeitos da balança de pagamentos. Fica entendido que tais calendários poderão ser alterados conforme adequado, de modo a ter em conta a evolução da situação da balança de pagamentos. Sempre que um Membro não anuncie publicamente um calendário, deverá comunicar as razões de tal facto.

2 - Os Membros confirmam o seu compromisso de dar preferência às medidas que perturbem o menos possível o comércio. Entende-se que tais medidas (designadas por «medidas baseadas nos preços» no presente Memorando de Entendimento) incluem as sobretaxas de importação, os requisitos em matéria de caução obrigatória ou outras medidas comerciais equivalentes que influenciem os preços dos produtos importados. Não obstante as disposições do artigo II, entende-se que as medidas baseadas nos preços adoptadas por razões relacionadas com a balança de pagamentos poderão ser aplicadas por um Membro cumulativamente com os direitos inscritos na lista desse Membro. Além disso, esse membro indicará, de forma clara e separadamente e em conformidade com os procedimentos de notificação enunciados no presente Memorando de Entendimento, o montante correspondente à diferença entre a medida baseada nos preços e o direito consolidado.

3 - Os Membros esforçar-se-ão por evitar a imposição das novas restrições quantitativas por razões relacionadas com a balança de pagamentos, a menos que, devido a uma situação crítica da balança de pagamentos, as medidas baseadas nos preços não permitam pôr termo a uma acentuada degradação da situação dos pagamentos externos. Caso um Membro aplique restrições quantitativas, deverá justificar as razões pelas quais as medidas baseadas nos preços não constituem um instrumento adequado para fazer face à situação da balança de pagamentos. Um Membro que mantenha restrições quantitativas deverá indicar, aquando de consultas sucessivas, os progressos realizados para reduzir consideravelmente a incidência e o efeito restritivo de tais medidas. Entende-se que o mesmo produto não poderá ser objecto de mais de um tipo de medida de restrição à importação adoptada por razões relacionadas com a balança de pagamentos.

4 - Os Membros confirmam que as medidas de restrição à importação adoptadas por razões relacionadas com a balança de pagamentos poderão unicamente ser aplicadas para controlar o nível geral das importações, não podendo ultrapassar a medida do necessário para sanar a situação da balança de pagamentos. A fim de reduzir ao mínimo eventuais efeitos de protecção, os Membros administrarão as restrições de um modo transparente. As autoridades do Membro importador apresentarão uma justificação adequada dos critérios utilizados para determinar quais os produtos sujeitos a restrição. Tal como previsto no n.º 3 do artigo XII e no n.º 10 do artigo XVIII, os Membros poderão, no caso de certos produtos essenciais, excluir ou limitar a imposição de sobretaxas gerais ou de outras medidas aplicadas por razões relacionadas com a balança de pagamentos. Por «produtos essenciais» entender-se-ão os produtos que satisfaçam as necessidades básicas de consumo ou contribuam para os esforços desenvolvidos por um Membro com o objectivo de melhorar a situação da sua balança de pagamentos, por exemplo, os bens de capital ou os factores de produção necessários para a produção. Na administração de restrições quantitativas, os Membros só utilizarão regimes de licenças discricionários quanto tal for inevitável, devendo eliminá-los progressivamente. Os critérios utilizados para determinar a quantidade ou o valor das importações autorizadas deverão ser devidamente justificados.

Procedimentos aplicáveis às consultas sobre a balança de pagamentos

5 - O Comité das Restrições Relacionadas com a Balança de Pagamentos (designado por «Comité» no presente Memorando de Entendimento) procederá a consultas a fim de examinar todas as medidas de restrição à importação adoptadas por razões relacionadas com a balança de pagamentos. A participação no Comité está aberta a todos os Membros que manifestem um desejo nesse sentido. O Comité acompanhará os procedimentos de consulta sobre as restrições relacionadas com a balança de pagamentos, aprovados em 18 de Abril de 1970 (BISD 18S/48-53), designados por «procedimentos de consulta aprofundados» no presente Memorando de Entendimento), sob reserva das disposições seguidamente apresentadas.

6 - Um Membro que aplique novas restrições ou que eleve o nível geral das suas restrições através de um reforço considerável das medidas deve entabular consultas com o Comité num prazo de quatro meses a contar da data de adopção de tais medidas. O Membro que adopte tais medidas pode solicitar que a realização de consultas ao abrigo do n.º 4, alínea a), do artigo XII ou do n.º 12, alínea a), do artigo XVIII, conforme adequado. Caso tal pedido não seja apresentado, o presidente do Comité convidá-lo-á a realizar essas consultas. Entre os elementos susceptíveis de ser examinados no âmbito das consultas figuram a introdução de novos tipos de medidas restritivas por razões relacionadas com a balança de pagamentos ou o aumento do nível das restrições e da gama de produtos objecto de restrição.

7 - Todas as restrições aplicadas por razões relacionadas com a balança de pagamentos serão objecto de um exame periódico pelo Comité, em conformidade com o disposto no n.º 4, alínea b), do artigo XII ou no n.º 12, alínea b), do artigo XVIII, sob reserva da possibilidade de alterar a periodicidade das consultas de acordo com o Membro consultante ou por força de qualquer procedimento de exame específico que possa ser recomendado pelo Conselho Geral.

8 - No caso dos países menos desenvolvidos Membros ou de países em desenvolvimento Membros que desenvolvam esforços de liberalização em conformidade com o calendário apresentado ao Comité aquando de consultas anteriores, poderão realizar-se consultas segundo os procedimentos simplificados aprovados em 19 de Dezembro de 1972 (BISD 20S/47-49, designados por «procedimentos de consulta simplificados» no presente Memorando de Entendimento). Poderão igualmente realizar-se consultas segundo os procedimentos simplificados quando o exame das políticas comerciais de um país em desenvolvimento Membro esteja previsto para o mesmo ano civil que as consultas. Nesses casos, a decisão de realizar, ou não, consultas aprofundadas será tomada com base nos elementos enumerados no ponto 8 da Declaração de 1979. Excepto no caso dos países menos desenvolvidos Membros, não poderão ser realizadas mais de duas consultas sucessivas segundo os procedimentos simplificados.

Notificação e documentação

9 - Os Membros notificarão ao Conselho Geral a introdução de medidas de restrição à importação adoptadas por razões relacionadas com a balança de pagamentos ou qualquer alteração respeitante à sua aplicação, bem como qualquer alteração introduzida nos calendários de eliminação de tais medidas, anunciados em conformidade com o disposto no n.º 1. As alterações significativas serão notificadas ao Conselho Geral antes do seu anúncio ou, o mais tardar, no prazo de 30 dias a contar do mesmo. Anualmente, cada membro comunicará ao Secretariado, a fim de ser examinada pelos Membros, uma notificação recapitulativa contendo todas as alterações introduzidas nas disposições legislativas ou regulamentares, nas declarações de política geral ou nos anúncios ao público. As notificações incluirão, na medida do possível, informações completas, a nível da linha pautal, sobre o tipo de medidas aplicadas, os critérios utilizados para a sua administração, os produtos abrangidos e os fluxos comerciais afectados.

10 - A pedido de qualquer Membro, as notificações poderão ser examinadas pelo Comité. Tais exames destinar-se-ão unicamente a esclarecer questões específicas levantadas por uma notificação ou para determinar a eventual necessidade de realização de consultas ao abrigo do n.º 4, alínea a), do artigo XII ou do n.º 12, alínea a), do artigo XVIII. Os Membros que tenham razões para crer que uma medida de restrição à importação aplicada por um outro Membro foi adoptada por razões relacionadas com a balança de pagamentos poderão comunicar a questão ao Comité. O Presidente do Comité solicitará informações sobre tal medida e comunica-las-á a todos os Membros. Sem prejuízo do direito que assiste a qualquer Membro do Comité de solicitar esclarecimentos adequados no decurso das consultas, o Membro consultante poderá previamente submeter as questões à apreciação do Comité.

11 - O Membro consultante elaborará um documento de base para as consultas que, para além de quaisquer outras informações consideradas pertinentes, deverá incluir: a) um resumo da situação e das perspectivas da balança de pagamentos, incluindo uma exposição sobre os factores internos e externos que influenciam a situação da balança de pagamentos e as medidas de política interna adoptadas para restabelecer o equilíbrio numa base sã e duradoura; b) uma descrição completa das restrições aplicadas por razões relacionadas com a balança de pagamentos, a base jurídica dessas restrições e as disposições adoptadas para reduzir eventuais efeitos proteccionistas; c) as medidas adoptadas, desde a última consulta, para liberalizar as restrições à importação, à luz das conclusões do Comité, e d) um plano para a eliminação e progressiva flexibilização das restantes restrições. Se for caso disso, poder-se-á fazer referência a informações que figurem noutras notificações ou relatórios apresentados à OMC. No caso de consultas realizadas segundo procedimentos simplificados, o Membro consultante apresentará uma declaração escrita contendo as informações essenciais sobre os elementos abrangidos pelo documento de base.

12 - A fim de facilitar as consultas no âmbito do Comité, o Secretariado elaborará um documento de base factual que aborde os diferentes aspectos do plano de consultas. No caso de países em desenvolvimento Membros, o documento do Secretariado incluirá informações gerais e analíticas pertinentes no que respeita à incidência da conjuntura comercial externa na situação e nas perspectivas da balança de pagamentos do Membro consultante. A pedido de um país em desenvolvimento Membro, os serviços de assistência técnica do Secretariado assisti-lo-ão na elaboração da documentação para as consultas.

Conclusões das consultas sobre a balança de pagamentos

13 - O Comité apresentará ao Conselho Geral relatórios sobre as consultas por ele realizadas. No caso de consultas aprofundadas, os relatórios deverão conter as conclusões do Comité sobre os diferentes elementos do plano de consultas, bem como os factos e as razões em que aquelas se baseiam. O Comité envidará esforços no sentido de incluir nas suas conclusões propostas de recomendações destinadas a promover a aplicação do artigo XII, da secção B do artigo XVIII, da Declaração de 1979 e do presente Memorando de Entendimento. Nos casos em que tenha sido apresentado um calendário para a eliminação de medidas de restrição adoptadas por razões relacionadas com a balança de pagamentos, o Conselho Geral poderá recomendar que, quando um Membro aderir a tal calendário, se considere que o mesmo se compromete a cumprir as obrigações que para ele decorrem do GATT de 1994. Sempre que o Conselho Geral tenha formulado recomendações específicas, os direitos e obrigações dos Membros serão avaliados à luz dessas recomendações. Na falta de propostas de recomendações específicas pelo Conselho Geral, as conclusões do Comité deverão conter os diferentes pontos de vista expressos no Comité. Caso se tenha recorrido a consultas realizadas segundo procedimentos simplificados, o relatório a apresentar incluirá um resumo dos principais elementos examinados no Comité e uma decisão sobre a eventual necessidade de se realizarem consultas aprofundadas.

MEMORANDO DE ENTENDIMENTO SOBRE A INTERPRETAÇÃO DO ARTIGO XXIV DO ACORDO GERAL SOBRE PAUTAS ADUANEIRAS E COMÉRCIO DE 1994.

Os Membros:

Tendo em conta as disposições do artigo XXIV do GATT de 1994;

Reconhecendo que as uniões aduaneiras e as zonas de comércio livre aumentaram muito em número e importância desde a instituição do GATT de 1947, representando actualmente uma parte significativa do comércio mundial;

Reconhecendo que uma integração mais profunda das economias das partes nesses acordos pode contribuir para a expansão do comércio mundial;

Reconhecendo igualmente que essa contribuição é maior se a eliminação dos direitos aduaneiros e de outras regulamentações comerciais restritivas entre os territórios constitutivos se alargar a todo o comércio e menor se um sector importante de comércio for excluído;

Reafirmando que tais acordos devem ter por objectivo facilitar o comércio entre os territórios constitutivos e não levantar obstáculos ao comércio de outros Membros com esses territórios, e que as partes nesses acordos devem fazer todo o possível para evitar que o seu estabelecimento ou alargamento tenha efeitos desfavoráveis no comércio de outros Membros;

Convencidos igualmente da necessidade de reforçar a eficácia do papel do Conselho do Comércio de Mercadorias no que respeita ao exame dos acordos notificados por força do artigo XXIV, clarificando os critérios e procedimentos de avaliação dos novos acordos ou dos acordos alargados e melhorando a transparência de todos os acordos concluídos ao abrigo do artigo XXIV;

Reconhecendo a necessidade de entendimento comum quanto às obrigações que para os Membros decorrem do n.º 12 do artigo XXIV;

acordam no seguinte:

1 - Para ser conformes ao artigo XXIV, as uniões aduaneiras, zonas de comércio livre e acordos provisórios concluídos tendo em vista o estabelecimento de uma união aduaneira ou de uma zona de comércio livre deverão satisfazer, nomeadamente, o disposto nos n.os 5, 6, 7 e 8 desse artigo.

N.º 5 do artigo XXIV

2 - A avaliação, prevista no n.º 5, alínea a), do artigo XXIV, da incidência geral dos direitos aduaneiros e de outras regulamentações comerciais aplicáveis antes e após o estabelecimento de uma união aduaneira basear-se-á, no que diz respeito aos direitos aduaneiros e às imposições, numa avaliação global das taxas médias ponderadas dos direitos e nos direitos aduaneiros cobrados. Essa avaliação basear-se-á nas estatísticas de importação relativas a um período representativo anterior, que serão comunicadas pela união aduaneira, por linha pautal, em valor e em volume, discriminadas por país de origem Membro da OMC. O Secretariado calculará as taxas médias ponderadas dos direitos e os direitos aduaneiros cobrados segundo a metodologia utilizada na avaliação das ofertas pautais efectuadas no âmbito das negociações comerciais multilaterais do Uruguay Round. Para o efeito, os direitos aduaneiros e as imposições a ter em conta serão as taxas dos direitos aplicados. Reconhece-se que para efeitos da avaliação global da incidência de outras regulamentações comerciais de difícil quantificação e agregação, poderá ser necessário examinar cada medida, regulamentação e produto abrangido, bem como o fluxo comercial afectado.

3 - O «prazo razoável» referido no n.º 5, alínea c), do artigo XXIV não deverá, salvo em casos excepcionais, ultrapassar 10 anos. Caso os Membros que são parte num acordo provisório considerem insuficiente um prazo de 10 anos, deverão explicar pormenorizadamente ao Conselho do Comércio de Mercadorias a razão pela qual é necessário um prazo mais longo.

N.º 6 do Artigo XXIV

4 - O n.º 6 do artigo XXIV estipula o procedimento a seguir sempre que um Membro que estabeleça uma união aduaneira pretenda aumentar a taxa de um direito consolidado. A este respeito, os Membros reafirmam que o procedimento estabelecido no artigo XXVIII, tal como precisado nas linhas directrizes adoptadas em 10 de Novembro de 1980 (BISD 27S/26-28) e no Memorando de Entendimento sobre a Interpretação do Artigo XXVIII do GATT de 1994, deve ser iniciado antes da alteração ou retirada das concessões pautais aquando da criação de uma união aduaneira ou da conclusão de um acordo provisório tendo em vista o estabelecimento de uma união aduaneira.

5 - Estas negociações serão iniciadas de boa fé, tendo em vista chegar a um ajustamento compensatório mutuamente satisfatório. No decurso dessas negociações, tal como previsto no n.º 6 do artigo XXIV, serão devidamente tidas em conta reduções dos direitos aduaneiros respeitantes à mesma linha pautal efectuadas por outras entidades constitutivas da união aduaneira aquando do seu estabelecimento. Caso tais reduções não sejam suficientes para proporcionar o necessário ajustamento de compensação, a união aduaneira oferecerá uma compensação, que poderá assumir a forma de reduções de direitos aduaneiros em outras linhas pautais. Tal oferta será tomada em consideração pelos Membros com direitos de negociação na consolidação alterada ou retirada. Caso o ajustamento de compensação permaneça inaceitável, as negociações deverão prosseguir. Quando, apesar desses esforços, não for possível chegar a acordo no âmbito das negociações sobre o ajustamento de compensação previsto no artigo XXVIII, tal como precisado pelo Memorando de Entendimento sobre a Interpretação do Artigo XXVIII do GATT de 1994, num prazo razoável a contar da data de início das negociações, a união aduaneira poderá, no entanto, alterar ou retirar as concessões. Os Membros afectados terão a faculdade de retirar concessões substancialmente equivalentes, em conformidade com o disposto no artigo XXVIII.

6 - O GATT de 1994 não impõe aos Membros que beneficiem de uma redução dos direitos aduaneiros na sequência do estabelecimento de uma união aduaneira, ou da conclusão de um acordo provisório tendo em vista o estabelecimento de uma união aduaneira, qualquer obrigação de concessão de um ajustamento de compensação às suas entidades constitutivas.

Exame das uniões aduaneiras e das zonas de comércio livre

7 - Todas as notificações efectuadas em conformidade com o n.º 7, alínea a), do artigo XXIV serão examinadas por um grupo de trabalho à luz das disposições pertinentes do GATT de 1994 e do ponto 1 do presente Memorando de Entendimento. O grupo de trabalho apresentará ao Conselho do Comércio de Mercadorias um relatório sobre as suas verificações nesta matéria. O Conselho do Comércio de Mercadorias pode dirigir aos Membros as recomendações que considere adequadas.

8 - No que respeita aos acordos provisórios, o grupo de trabalho pode, no seu relatório, formular recomendações adequadas quanto ao calendário proposto e às medidas necessárias para completar o estabelecimento da união aduaneira ou da zona de comércio livre. Caso necessário, pode prever um novo exame do acordo.

9 - Os Membros Partes num acordo provisório notificarão ao Conselho do Comércio de Mercadorias quaisquer alterações significativas no que respeita ao plano e ao programa incluídos nesse acordo, devendo o Conselho, caso solicitado nesse sentido, examinar essas alterações.

10 - Se, contrariamente ao previsto no n.º 5, alínea c), do artigo XXIV, um acordo provisório notificado em conformidade com o disposto no n.º 7, alínea a), do artigo XXIV não incluir um plano e um programa, o grupo de trabalho recomendará, no seu relatório, tal plano e programa. As Partes não manterão nem aplicarão, consoante o caso, tal acordo se não estiverem preparadas para o alterar em conformidade com essas recomendações. Será previsto um exame posterior da aplicação das referidas recomendações.

11 - As uniões aduaneiras e as entidades constitutivas das zonas de comércio livre apresentarão periodicamente ao Conselho do Comércio de Mercadorias um relatório sobre o funcionamento do acordo considerado, tal como previsto pelas partes contratantes no GATT de 1947 na sua instrução ao Conselho do GATT de 1947 respeitante aos relatórios sobre acordos regionais (BISD 18S/38). Quaisquer alterações e ou desenvolvimentos respeitante a um acordo deverão ser imediatamente notificados.

Resolução de litígios

12 - As disposições dos artigos XXII e XXIII do GATT de 1994, tal como precisadas e aplicadas pelo Memorando de Entendimento sobre Resolução de Litígios, poderão ser invocadas no que diz respeito a qualquer questão decorrente da aplicação das disposições do artigo XXIV relativas às uniões aduaneiras, às zonas de comércio livre ou aos acordos provisórios concluídos tendo em vista o estabelecimento de uma união aduaneira ou de uma zona de comércio livre.

N.º 12 do artigo XXIV

13 - Em conformidade com o GATT de 1994, cada Membro é plenamente responsável pelo respeito de todas as disposições do GATT de 1994 e tomará todas as medidas razoáveis ao seu dispor para garantir, no respectivo território, o respeito das referidas disposições por parte das administrações regionais ou locais.

14 - As disposições dos artigos XXII e XXIII do GATT de 1994, tal como precisadas e aplicadas pelo Memorando de Entendimento sobre Resolução de Litígios, poderão ser invocadas no que respeita a medidas que afectem a sua observância por parte das administrações regionais ou locais no território de um Membro. Sempre que o Órgão de Resolução de Litígios estabeleça que uma disposição do GATT de 1994 não foi respeitada, o Membro responsável tomará todas as medidas razoáveis de que disponha para garantir a sua observância. As disposições relativas à compensação e à suspensão de concessões ou outras obrigações são aplicáveis nos casos em que não tenha sido possível garantir o respeito de tal disposição.

15 - Cada Membro compromete-se a examinar com compreensão e a proporcionar possibilidades adequadas de consulta no que respeita às observações que lhe possam ser dirigidas por qualquer outro Membro relativamente a medidas que afectem o funcionamento do GATT de 1994 tomadas no seu território.

MEMORANDO DE ENTENDIMENTO RESPEITANTE ÀS DERROGAÇÕES ÀS OBRIGAÇÕES DECORRENTES DO ACORDO GERAL SOBRE PAUTAS ADUANEIRAS E COMÉRCIO DE 1994.

Os Membros acordam no seguinte:

1 - Um pedido de derrogação ou de prorrogação de uma derrogação existente deve incluir uma descrição das medidas que o Membro se propõe adoptar, os objectivos específicos que pretende alcançar e os motivos que o impedem de realizar os seus objectivos de política através de medidas compatíveis com as obrigações que para ele decorrerem do GATT de 1994.

2 - Qualquer derrogação em vigor à data da entrada em vigor do Acordo OMC caducará, a menos que seja prorrogada em conformidade com os procedimentos acima referidos ou os estabelecidos no artigo IX do Acordo OMC, na data da sua caducidade ou dois anos após a data de entrada em vigor do Acordo OMC, consoante a data que for anterior.

3 - Qualquer Membro que considere que uma vantagem que para ele resulta do GATT de 1994 se encontra anulada ou comprometida pelo facto de:

a) O Membro a que uma derrogação foi concedida não ter observado as respectivas modalidades ou condições; ou

b) Ser aplicada uma medida compatível com as modalidades e condições da derrogação;

pode invocar as disposições do artigo XXIII do GATT 1994, tal como precisadas e aplicadas pelo Memorando de Entendimento sobre Resolução de Litígios.

MEMORANDO DE ENTENDIMENTO SOBRE A INTERPRETAÇÃO DO ARTIGO XXVIII DO ACORDO GERAL SOBRE PAUTAS ADUANEIRAS E COMÉRCIO DE 1994.

Os Membros acordam o seguinte:

1 - Para efeitos de alteração ou retirada de uma concessão, considera-se que o Membro cuja relação entre as exportações afectadas pela concessão (isto é, as exportações do produto para o mercado do Membro que altera ou retira a concessão) e as suas exportações totais seja a mais elevada tem um interesse como principal fornecedor se ainda não tiver um direito de negociação inicial ou um interesse como principal fornecedor nos termos do n.º 1 do artigo XXVIII. Fica, no entanto, acordado que o disposto no presente ponto será reexaminado pelo Conselho do Comércio de Mercadorias cinco anos após a data da entrada em vigor do Acordo OMC, a fim de determinar se esse critério funcionou de modo satisfatório, permitindo uma redistribuição dos direitos de negociação em favor dos pequenos e médios Membros exportadores. Se tal não for o caso, serão consideradas melhorias possíveis, incluindo, em função da existência de dados adequados, a adopção de um critério baseado na relação entre as exportações afectadas pela concessão e as exportações para todos os mercados do produto em questão.

2 - Sempre que um Membro considere que tem um interesse como principal fornecedor em conformidade com o ponto 1, deve comunicar a sua reivindicação, por escrito, acompanhada de elementos de prova de apoio, ao Membro que se propõe alterar ou retirar uma concessão, informando simultaneamente o Secretariado. Nesses casos, é aplicável o disposto no ponto 4 dos «Procedimentos de negociação ao abrigo do artigo XXVIII», adoptados em 10 de Novembro de 1980 (BISD 27S/26-28).

3 - A fim de determinar quais os Membros que têm um interesse como principal fornecedor (em conformidade com o ponto 1 ou o n.º 1 do artigo XXVIII) ou um interesse substancial, será unicamente tomado em consideração o comércio do produto em causa efectuado numa base no tratamento da NMF. Contudo, o comércio do produto em causa efectuado no âmbito de preferências não contratuais será igualmente tomado em consideração se o comércio em questão tiver deixado de beneficiar desse tratamento preferencial, decorrendo, pois, com base no tratamento da NMF, no momento da negociação da alteração ou retirada da concessão, ou deixar de beneficiar no final dessa negociação.

4 - Quando uma concessão pautal foi alterada ou retirada relativamente a um novo produto (ou seja, um produto relativamente ao qual não existem dados estatísticos comerciais disponíveis relativos a um período de três anos), considera-se que o Membro que detenha direitos de negociação inicial no que respeita à linha pautal em que o produto está ou esteve anteriormente classificado, tem um direito de negociação inicial relativamente à concessão em questão. Na determinação do interesse como principal fornecedor e do interesse substancial, bem como do cálculo da compensação, serão nomeadamente considerados a capacidade de produção e o investimento do Membro exportador, no que diz respeito ao produto em causa, bem como as estimativas relativas ao aumento das exportações e as previsões da procura do produto no Membro importador. Para efeitos do presente ponto, por «novo produto» entende-se um produto correspondente a uma posição pautal criada a partir da divisão de uma linha pautal existente.

5 - Sempre que um Membro considere que tem um interesse como principal fornecedor ou um interesse substancial em conformidade com o ponto 4, comunicará a sua reivindicação por escrito, acompanhada de elementos de prova de apoio, ao Membro que se propõe alterar ou retirar uma concessão, informando simultaneamente o Secretariado. Nesses casos, é aplicável o disposto no ponto 4 dos «Procedimentos de negociação ao abrigo do artigo XXVIII».

6 - Quando uma concessão pautal ilimitada for substituída por um contingente pautal, o montante da compensação concedida deverá ultrapassar o montante do comércio efectivamente afectado pela alteração da concessão. A base de cálculo da compensação deverá corresponder ao montante em que o comércio futuro em perspectiva exceda o nível do contingente. Fica entendido que o cálculo do montante do comércio futuro em perspectiva deverá basear-se no mais elevado dos seguintes valores:

a) A média anual das trocas comerciais efectuadas no período representativo de três anos mais recente, majorada da taxa de aumento média anual das importações durante esse mesmo período ou de 10%, consoante o valor que seja superior; ou

b) As trocas comerciais efectuadas no ano mais recente, majoradas de 10%.

O montante da compensação devido por um Membro não pode, em caso algum, ultrapassar o resultante de uma retirada completa da concessão.

7 - A qualquer Membro que, em conformidade com o ponto 1 ou o n.º 1 do artigo XXVIII, tenha um interesse como principal fornecedor numa concessão que seja alterada ou retirada será concedido um direito de negociação inicial no que respeita às concessões compensatórias, a menos que os Membros em causa tenham acordado numa outra forma de compensação.

PROTOCOLO DE MARRÁQUEXE ANEXO AO ACORDO GERAL SOBRE PAUTAS ADUANEIRAS E COMÉRCIO DE 1994

Os Membros:

Tendo realizado negociações no âmbito do GATT de 1947, em conformidade com a Declaração Ministerial Relativa ao Uruguay Round;

acordam no seguinte:

1 - A lista relativa a um Membro anexa ao presente Protocolo tornar-se-á a lista desse Membro anexa ao GATT de 1994 no dia da entrada em vigor do Acordo OMC relativamente a esse Membro. Considera-se anexa ao presente Protocolo qualquer lista apresentada em conformidade com a Decisão Ministerial relativa às medidas a favor dos países menos desenvolvidos.

2 - Salvo especificação em contrário da lista de um Membro, as reduções pautais acordadas por cada Membro serão aplicadas em cinco reduções iguais da taxa. Salvo especificação em contrário da lista do Membro em questão, a primeira destas reduções será efectuada na data da entrada em vigor do Acordo OMC, cada redução posterior em 1 de Janeiro de cada ano seguinte e a última redução, o mais tardar, quatro anos após a data da entrada em vigor do Acordo OMC. Salvo especificação em contrário da sua lista, um Membro que aceite o Acordo OMC, após a sua entrada em vigor, procederá, na data da entrada em vigor desse Acordo relativamente a esse Membro, a todas as reduções da taxa que já tenham sido efectuadas, bem como às reduções a que, em conformidade com a frase anterior, deveria proceder em 1 de Janeiro do ano seguinte, efectuando todas as restantes reduções da taxa de acordo com o calendário especificado reduzida deverá, em cada etapa, ser arrendondada para a primeira casa decimal. Relativamente aos produtos agrícolas, tal como definidos no artigo 2.º do Acordo sobre a Agricultura, o escalonamento das reduções deverá ser efectuado tal como especificado nas partes pertinentes das listas.

3 - A aplicação das concessões e dos compromissos inscritos nas listas anexas ao presente Protocolo será, mediante pedido, objecto de um exame multilateral por parte dos Membros. Esta disposição não prejudica os direitos e obrigações dos Membros decorrentes dos Acordos que figuram no Anexo 1A do Acordo OMC.

4 - Logo que a lista de um Membro anexa ao presente Protocolo se tenha tornado lista anexa ao GATT de 1994, em conformidade com o disposto no ponto 1, esse Membro tem a faculdade de, a qualquer momento, suspender ou retirar, no todo ou em parte, a concessão contida na referida lista no que respeita a qualquer produto relativamente ao qual o principal fornecedor seja um outro participante no Uruguay Round cuja lista ainda não se tenha tornado lista anexa ao GATT de 1994. No entanto, tal medida só poderá ser tomada após tal suspensão ou retirada de concessão ter sido notificada, por escrito, ao Conselho do Comércio de Mercadorias e terem sido realizadas consultas, mediante pedido, com qualquer Membro cuja lista pertinente se tenha tornado lista anexa ao GATT de 1994 e que tenha um interesse substancial no produto em questão. Qualquer concessão assim suspensa ou retirada será aplicada a partir do dia em que a lista do Membro que tenha um interesse como fornecedor principal se torne lista anexa ao GATT de 1994.

5 - a) Sem prejuízo do disposto no n.º 2 do artigo 4.º do Acordo sobre a Agricultura, para efeitos da referência à data do GATT de 1994 que figura no n.º 1, alíneas b) e c), do artigo II desse Acordo, a data aplicável relativamente a cada produto que seja objecto de uma concessão contida numa lista de concessões anexa ao presente Protocolo será a data do presente Protocolo.

b) Para efeitos da referência à data do GATT de 1994, no n.º 6, alínea a), do artigo II desse Acordo, a data aplicável relativamente a uma lista de concessões anexa ao presente Protocolo será a data do presente Protocolo.

6 - Em caso de alteração ou retirada de concessões relativas a medidas não pautais que figurem na parte III das listas, é aplicável o disposto no artigo XXVIII do GATT de 1994 e os «Procedimentos para as negociações ao abrigo do artigo XXVIII» adoptados em 10 de Novembro de 1980 (BIRD 27S/26-28), sem prejuízo dos direitos e obrigações dos Membros decorrentes do GATT de 1994.

7 - Nos casos em que, relativamente a qualquer produto, uma lista anexa ao presente Protocolo implique um tratamento menos favorável que o previsto para esse produto nas listas anexas ao GATT de 1947 antes da entrada em vigor do Acordo OMC, considera-se que o Membro a que a lista diz respeito tomou as medidas adequadas que seriam necessárias em conformidade com as disposições pertinentes do artigo XXVIII do GATT de 1947 ou de 1994. O disposto no presente ponto é unicamente aplicável à África do Sul, ao Egipto, ao Peru e ao Uruguai.

8 - As listas anexas ao presente Protocolo fazem fé nas línguas inglesa, francesa ou espanhola, tal como especificado em cada lista.

9 - A data do presente Protocolo é 15 de Abril de 1994.

[As listas acordadas de participantes serão anexas ao Protocolo de Marráquexe anexo ao exemplar de tratado do Acordo OMC.]

ACORDO SOBRE A AGRICULTURA

Os Membros:

Decididos a estabelecer uma base para encetar um processo de reforma do comércio dos produtos agrícolas em conformidade com os objectivos das negociações definidos na Declaração de Punta del Este;

Lembrando que o objectivo a longo prazo, acordado aquando da avaliação intercalar das negociações comerciais multilaterais do Uruguay Round, «é estabelecer um sistema de comércio dos produtos agrícolas que seja equitativo e orientado para o mercado, devendo ser iniciado um processo de reforma através da negociação de compromissos respeitantes ao apoio e à protecção e do estabelecimento de regras e disciplinas do GATT reforçadas e mais eficazes»;

Lembrando, além disso, que «o objectivo a longo prazo acima referido é conseguir, de um modo contínuo durante um período acordado, reduções progressivas e substanciais do apoio e da protecção à agricultura, que permitam remediar e prevenir as restrições e distorções que afectam os mercados agrícolas mundiais»;

Resolvidos a alcançar compromissos vinculativos específicos nos domínios do acesso aos mercados, apoio interno e concorrência na exportação, e a chegar a um acordo sobre as questões sanitárias e fitossanitárias;

Tendo acordado em que, na execução dos seus compromissos em matéria de acesso aos mercados, os países desenvolvidos Membros teriam plenamente em conta as necessidades e as situações específicas dos países em desenvolvimento Membros, através de uma melhoria mais acentuada das possibilidades e condições de acesso dos produtos agrícolas que tenham um interesse especial para estes Membros, incluindo a liberalização plena do comércio dos produtos agrícolas tropicais acordada aquando da avaliação intercalar, e dos produtos que se revistam de especial importância para a diversificação da produção em substituição das culturas de plantas narcóticas ilícitas;

Notando que os compromissos a título do programa de reforma devem ser assumidos de forma equitativa por todos os Membros, na sequência de razões que não de ordem comercial, incluindo a segurança alimentar e a necessidade de proteger o ambiente, e do facto de se ter acordado em que um tratamento especial e diferenciado dos países em desenvolvimento constitui um elemento integrante das negociações, e tendo em conta os possíveis efeitos negativos da execução do programa de reforma para os países menos desenvolvidos e para os países em desenvolvimento importadores líquidos de produtos alimentares;

acordam no seguinte:

PARTE I

Artigo 1.º

Definições

No presente acordo, a menos que o contexto implique um sentido diferente:

a) Por «medida global do apoio» e «MGA» entende-se o nível de apoio anual, expresso em termos monetários, concedido para um produto agrícola a favor dos produtores do produto agrícola de base ou o nível de apoio não directamente ligado a produtos concedido a favor dos produtores agrícolas em geral, com excepção do apoio concedido a título de programas que satisfaçam as condições necessárias para serem isentos da redução por força do Anexo 2 do presente Acordo, e que:

i) No que respeita ao apoio concedido durante o período de base, esteja especificado nos quadros correspondentes dos dados explicativos incorporados, por remissão, na parte IV da lista de um Membro; e

ii) No que respeita ao apoio concedido durante qualquer ano de período de execução e daí em diante, seja calculado em conformidade com o disposto no Anexo 3 do presente Acordo, tendo em conta as componentes e a metodologia utilizadas nos quadros dos dados explicativos incorporados, por remissão, na parte IV da lista do Membro;

b) No que respeita aos compromissos em matéria de apoio interno, entende-se por «produto agrícola de base» o produto, tão perto quanto possível do ponto da primeira venda, especificado na lista de um Membro e dos dados explicativos correspondentes;

c) As «despesas orçamentais» ou «despesas» incluem as receitas não recebidas;

d) Por «medida equivalente do apoio» entende-se o nível de apoio anual, expresso em termos monetários, concedido aos produtores de um produto agrícola de base através da aplicação de uma ou várias medidas, cujo cálculo em conformidade com o método da MGA não seja possível, com excepção do apoio concedido a título de programas que satisfaçam as condições necessárias para serem isentos da redução por força do Anexo 2 do presente Acordo, e que:

ii) No que respeita ao apoio concedido durante qualquer ano do período de execução e daí em diante, seja calculado em conformidade com o disposto no Anexo 4 do presente acordo, tendo em conta as componentes e a metodologia utilizadas nos quadros dos dados explicativos incorporados, por remissão, na parte IV da lista do Membro;

e) Por «subsídios à exportação» entendem-se os subsídios subordinados aos resultados da exportação, incluindo os subsídios à exportação constantes do artigo 9.º do presente Acordo;

f) Por «período de execução» entende-se o período de seis anos com início em 1995, excepto quando, para efeitos da aplicação do artigo 13.º, se entenda o período de nove anos com início em 1995;

g) Por «concessões em matéria de acesso aos mercados» entendem-se todos os compromissos em matéria de acesso aos mercados assumidos em conformidade com o presente Acordo;

h) Por «medida global do apoio total» e «MGA total» entende-se a soma de todos os apoios internos concedidos a favor dos produtores agrícolas, calculada adicionando todas as medidas globais do apoio para os produtos agrícolas de base, todas as medidas globais do apoio não directamente ligado a produtos e todas as medidas equivalentes do apoio para os produtos agrícolas, e que:

i) No que respeita ao apoio concedido durante o período de base (ou seja, a «MGA total de base») e ao apoio máximo que seja permitido conceder durante qualquer ano do período de execução ou daí em diante (ou seja, os «níveis de compromisso consolidados anuais e finais»), esteja especificada na parte IV da lista de um Membro; e

ii) No que respeita ao nível de apoio efectivamente concedido durante qualquer ano do período de execução e daí em diante (ou seja, a «MGA total corrente»), seja calculada em conformidade com o disposto no presente acordo, nomeadamente no artigo 6.º, e com as componentes e a metodologia utilizadas nos quadros dos dados explicativos incorporados, por remissão, na parte IV da lista do Membro;

i) No que respeita aos compromissos específicos de um Membro, o «ano» referido na alínea f) é o ano civil, o exercício financeiro ou a campanha de comercialização especificada na lista respeitante a esse Membro.

Artigo 2.º

Produtos abrangidos

O presente Acordo é aplicável aos produtos enumerados no seu Anexo 1, a seguir denominados «produtos agrícolas».

PARTE II

Artigo 3.º

Incorporação das concessões e dos compromissos

1 - Os compromissos em matéria de apoio interno e de subsídios à exportação constantes da parte IV da lista de cada Membro são compromissos que limitam a concessão de subsídios e que passam a ser parte integrante do GATT de 1994.

2 - Sob reserva das disposições do artigo 6.º, os Membros não concederão apoios a favor dos produtores nacionais que excedam os níveis de compromisso especificados na secção I da parte IV das suas listas.

3 - Sob reserva das disposições dos n.os 2, alínea b), e 4 do artigo 9.º, os Membros não concederão os subsídios à exportação previstos no n.º 1 do artigo 9.º para os produtos agrícolas ou grupos de produtos especificados na secção II da parte IV das suas listas que excedam os níveis de compromisso em matéria de despesas orçamentais e de quantidades aí especificados, nem concederão esses subsídios para os produtos agrícolas não especificados na mesma secção das suas listas.

PARTE III

Artigo 4.º

Acesso aos mercados

1 - As concessões em matéria de acesso aos mercados incluídas nas listas dizem respeito às consolidações e reduções das pautas e aos compromissos em matéria de acesso aos mercados aí especificados.

2 - Os Membros não manterão, não recorrerão nem retomarão medidas de tipo idêntico às que tiveram de ser convertidas em direitos aduaneiros propriamente ditos (ver nota 1), com excepção do previsto no artigo 5.º e no Anexo 5.

(nota 1) Estas medidas incluem as restrições quantitativas à importação, os direitos niveladores de importação variáveis, os preços mínimos de importação, os regimes de importação discricionários, as medidas não pautais aplicadas por intermédio de empresas comerciais estatais, as autolimitações das exportações e as medidas similares aplicadas nas fronteiras, com excepção dos direitos aduaneiros propriamente ditos, quer estas medidas sejam ou não aplicadas a título de derrogações às disposições do GATT de 1947, de que beneficiam certos países, mas não as medidas aplicadas a título de disposições relativas à balança de pagamentos ou a título de outras disposições gerais não especificamente respeitantes à agricultura do GATT de 1994 ou dos outros acordos comerciais multilaterais constantes do Anexo 1A do Acordo Que Cria a Organização Mundial do Comércio.

Artigo 5.º

Cláusula de salvaguarda especial

1 - Não obstante o disposto no n.º 1, alínea b), do artigo II do GATT de 1994, qualquer Membro pode recorrer ao disposto nos n.os 4 e 5 em relação à importação de um produto agrícola para o qual as medidas referidas no n.º 2 do artigo 4.º do presente Acordo tenham sido convertidas num direito aduaneiro propriamente dito e que seja designado na sua lista pelo símbolo «SE» como sendo objecto de uma concessão para a qual pode ser invocado o disposto no presente artigo se:

a) O volume das importações desse produto que entram no território aduaneiro do Membro que outorga a concessão durante qualquer ano exceder o nível de desencadeamento relacionado com a possibilidade existente de acesso ao mercado tal como previsto no n.º 4; ou, mas não simultaneamente,

b) O preço a que as importações desse produto podem entrar no território aduaneiro do Membro que outorga a concessão, determinado com base no preço de importação CIF da expedição em causa, expresso em moeda nacional, for inferior a um preço de desencadeamento igual ao preço de referência médio do produto em questão para o período de 1986 a 1988 (ver nota 2).

2 - As importações que sejam objecto de compromissos em matéria de acesso corrente e mínimo estabelecidos no âmbito de uma concessão referida no n.º 1 serão tidas em conta para determinar se o volume de importações necessário para invocar o disposto nos n.os 1, alínea a), e 4 foi atingido, mas as importações que sejam objecto de compromissos desse tipo não serão afectadas por qualquer direito adicional que possa ser imposto quer a título dos n.os 1, alínea a), e 4, quer a título dos n.os 1, alínea b), e 5.

3 - Qualquer expedição do produto em causa cujo transporte esteja em curso com base num contrato celebrado antes de o direito adicional ser imposto a título dos n.os 1, alínea a), e 4 ficará isenta desse direito adicional, desde que possa ser incluída no volume das importações desse produto no ano seguinte para efeitos de desencadeamento do disposto no n.º 1, alínea a), durante esse ano.

4 - Qualquer direito adicional imposto a título do n.º 1, alínea a), só será mantido até ao final do ano em que tenha sido imposto e só pode ser cobrado a um nível que não exceda um terço do nível do direito aduaneiro propriamente dito aplicável durante o ano em que a medida seja tomada. O nível de desencadeamento será fixado em conformidade com a tabela a seguir indicada, com base nas possibilidades de acesso ao mercado definidas como sendo as importações em termos de percentagem do consumo interno correspondente (ver nota 3) durante os três anos anteriores para os quais existam dados disponíveis:

a) Se as possibilidades de acesso ao mercado para um produto forem inferiores ou iguais a 10%, o nível de desencadeamento de base será igual a 125%;

b) Se as possibilidades de acesso ao mercado para um produto forem superiores a 10% mas inferiores ou iguais a 30%, o nível de desencadeamento de base será igual a 110%;

c) Se as possibilidades de acesso ao mercado para um produto forem superiores a 30%, o nível de desencadeamento de base será igual a 105%.

Em todos os casos, o direito adicional pode ser imposto em qualquer ano em que o volume absoluto das importações do produto em causa que entre no território aduaneiro do Membro que outorga a concessão exceda a soma de (x), nível de desencadeamento de base acima indicado multiplicado pela quantidade média importada durante os três anos anteriores para os quais existam dados disponíveis, e (y), variação do volume absoluto do consumo interno do produto em causa durante o ano mais recente para o qual existam dados disponíveis relativamente ao ano anterior, desde que o nível de desencadeamento não seja inferior a 105% da quantidade média importada utilizada no cálculo de (x).

(nota 2) O preço de referência utilizado para invocar as disposições da presente alínea será, em regra, o valor unitário CIF o médio do produtos considerado ou um preço adequado à qualidade do produto e ao seu estádio de transformação. Após ter sido utilizado pela primeira vez, esse preço será publicado e posto à disposição do público na medida do necessário para permitir que os outros Membros avaliem o direito adicional que pode ser cobrado.

(nota 3) Nos casos em que o consumo interno não seja tido em conta, será aplicável o nível de desencadeamento de base previsto no n.º 4, alínea a).

5 - O direito adicional imposto a título do n.º 1, alínea b), será fixado de acordo com a seguinte tabela:

a) Se a diferença entre o preço de importação CIF da expedição, expresso em moeda nacional (a seguir denominado «preço de importação») e o preço de desencadeamento definido no n.º 1, alínea b), for inferior ou igual a 10% do preço de desencadeamento, não será imposto qualquer direito adicional;

b) Se a diferença entre o preço de importação e o preço de desencadeamento (a seguir denominada «diferença») for superior a 10% mas inferior ou igual a 40% do preço de desencadeamento, o direito adicional será igual a 30% do montante que exceda os 10%;

c) Se a diferença for superior a 40% mas inferior ou igual a 60% do preço de desencadeamento, o direito adicional será igual a 50% do montante que exceda os 40%, a que se acrescentará o direito adicional autorizado nos termos da alínea b);

d) Se a diferença for superior a 60% mas inferior ou igual a 75%, o direito adicional será igual a 70% do montante que exceda 60% do preço de desencadeamento, a que se acrescentarão os direitos adicionais autorizados nos termos das alíneas b) e c);

e) Se a diferença for superior a 75% do preço de desencadeamento, o direito adicional será igual a 90% do montante que exceda os 75%, a que se acrescentarão os direitos adicionais autorizados nos termos das alíneas b), c) e d).

6 - No que respeita aos produtos perecíveis e sazonais, as condições acima enunciadas serão aplicadas de modo a ter em conta as suas características específicas. Em especial, será possível utilizar períodos mais curtos no que respeita aos períodos correspondentes do período de base, para efeitos dos n.os 1, alínea a), e 4, e preços de referência diferentes para períodos diferentes, para efeitos do n.º 1, alínea b).

7 - O funcionamento da cláusula de salvaguarda especial será assegurado de um modo transparente. Qualquer Membro que tome medidas a título do n.º 1, alínea a), informará do facto o Comité da Agricultura por meio de uma comunicação escrita que contenha todos os dados pertinentes, tão cedo quanto possível e nunca mais tarde que 10 dias a contar da aplicação dessas medidas. Nos casos em que as variações dos volumes do consumo devam ser discriminadas por diferentes rubricas pautais que sejam objecto de medidas a título do n.º 4, os dados pertinentes incluirão as informações e métodos utilizados para discriminar essas variações. Um Membro que tome medidas a título do n.º 4 facultará a qualquer outro Membro interessado a possibilidade de, em conjunto, realizarem consultas relativas às condições de aplicação das referidas medidas. Qualquer Membro que tome medidas a título do n.º 1, alínea b), informará o Comité da Agricultura por meio de uma comunicação escrita que contenha todos os dados pertinentes no prazo de 10 dias a contar da aplicação da primeira dessas medidas ou, no que respeita aos produtos perecíveis e sazonais, da primeira medida tomada em qualquer período. Os Membros comprometem-se a, na medida do possível, não recorrer ao disposto no n.º 1, alínea b), quando o volume das importações dos produtos em causa estiver a diminuir. Num caso e noutro, o Membro que tome tais medidas facultará a qualquer outro Membro interessado a possibilidade de, em conjunto, realizarem consultas relativas às condições de aplicação das referidas medidas.

8 - No caso de as medidas serem tomadas em conformidade com os n.os 1 a 7, os Membros comprometem-se a não recorrer, no que respeita a essas medidas, ao disposto nos n.os 1, alínea a), e 3 do artigo XIX do GATT de 1994, nem ao disposto do n.º 2 do artigo 8.º do Acordo sobre as Medidas de Salvaguarda.

9 - As disposições do presente artigo permanecerão em vigor durante o processo de reforma referido no artigo 20.º

PARTE IV

Artigo 6.º

Compromissos em matéria de apoio interno

1 - Os compromissos de redução do apoio interno de cada Membro constantes da parte IV da sua lista serão aplicáveis a todas as suas medidas de apoio interno a favor dos produtores agrícolas, com excepção das medidas internas que não estejam sujeitas a redução tendo em conta os critérios enunciados no presente artigo e no Anexo 2 do presente Acordo. Estes compromissos são expressos por uma medida global do apoio total e por «níveis de compromisso consolidados anuais e finais».

2 - Em conformidade com o acordado aquando da avaliação intercalar, ou seja, que as medidas de ajuda, directa ou indirecta, tomadas pelas entidades públicas para incentivar o desenvolvimento agrícola e rural são parte integrante dos programas de desenvolvimento dos países em desenvolvimento, os subsídios ao investimento que estão geralmente disponíveis para a agricultura aos países em desenvolvimento Membros, os subsídios aos factores de produção agrícola que estão geralmente disponíveis para os produtores que, nos países em desenvolvimento Membros, têm rendimentos baixos ou são dotados de recursos limitados e o apoio interno aos produtores dos países em desenvolvimento Membros destinado a incentivar a substituição das culturas de plantas narcóticas ilícitas serão isentos dos compromissos de redução do apoio interno que lhes seriam aplicáveis. O apoio interno que satisfaça os critérios enunciados no presente número não deve ser incluído no cálculo, por um Membro, da sua MGA total corrente.

3 - Em qualquer ano, considerar-se-á que um Membro respeita os seus compromissos de redução do apoio interno quando, nesse ano, o seu apoio interno a favor dos produtores agrícolas, expressos pela MGA total corrente, não exceda o nível de compromisso consolidado anual ou final correspondente especificado na parte IV da sua lista.

4 - a) Um Membro não será obrigado a incluir no cálculo da sua MGA total corrente, nem a reduzir:

i) O apoio interno directamente ligado a produtos que deveria ser incluído no cálculo, por um Membro, da sua MGA corrente, se esse apoio não exceder 5% do valor total da produção de um produto agrícola de base desse Membro durante o ano correspondente;

ii) O apoio interno não directamente ligado a produtos que deveria ser incluído no cálculo, por um Membro, da sua MGA corrente, se esse apoio não exceder 5% do valor da produção agrícola total desse Membro.

b) Para os países em desenvolvimento Membros, a percentagem de minimis a utilizar por força do presente número será de 10%.

5 - a) Os pagamentos directos a título de programas de limitação da produção não estarão submetidos aos compromissos de redução do apoio interno se:

i) Esses pagamentos se basearem numa superfície e em rendimentos fixos; ou

ii) Esses pagamentos forem efectuados em relação a 85% ou menos do nível de base da produção; ou

iii) Os pagamentos relativos a animais forem efectuados em relação a um número de cabeças fixo.

b) A isenção dos pagamentos directos que satisfaçam os critérios supra-referidos do compromisso de redução traduzir-se-á pela exclusão do valor desses pagamentos directos do cálculo, por um Membro, da sua MGA total corrente.

Artigo 7.º

Disciplinas gerais relativas ao apoio interno

1 - Cada Membro assegurará que todas as medidas de apoio interno a favor dos produtores agrícolas que não sejam objecto de compromissos de redução devido a satisfazerem os critérios enunciados no Anexo 2 do presente Acordo sejam mantidas em conformidade com esse Anexo.

2 - a) As medidas de apoio interno a favor dos produtores agrícolas, incluindo as alterações dessas medidas, e as medidas posteriormente introduzidas em relação às quais não seja possível demonstrar que satisfazem os critérios enunciados no Anexo 2 do presente Acordo ou que podem ser isentas da redução por força de qualquer outra disposição do presente Acordo serão incluídas no cálculo, por um Membro, da sua MGA total corrente.

b) No caso de não existirem compromissos em matéria de MGA total na parte IV da lista de um Membro, este não concederá aos produtores agrícolas um apoio que exceda o nível de minimis aplicável indicado no n.º 4 do artigo 6.º

PARTE V

Artigo 8.º

Compromissos em matéria de concorrência na exportação

Os Membros comprometem-se a não conceder subsídios à exportação que não estejam em conformidade com o presente Acordo e com os compromissos especificados nas suas listas.

Artigo 9.º

Compromissos em matéria de subsídios à exportação

1 - Por força do presente Acordo, são objecto de compromissos de redução os seguintes subsídios à exportação:

a) Concessão, pelas entidades públicas ou pelos seus organismos, de subsídios directos, incluindo pagamento em espécie, a uma empresa, sector da produção, produtores de um produto agrícola, cooperativa ou outra associação desses produtores ou a quaisquer entidades que operem no domínio da comercialização, subordinada aos resultados da exportação;

b) Venda ou escoamento para exportação, pelas entidades públicas ou pelos seus organismos, de existências de produtos agrícolas constituídas para fins não comerciais, a um preço inferior ao preço comparável pedido por um produto similar aos compradores no mercado interno;

c) Pagamentos efectuados para exportação de um produto agrícola financiados através de medidas das entidades públicas, quer representem quer não um encargo para o erário público, incluindo os pagamentos financiados pelas receitas provenientes de um direito nivelador imposto ao produto agrícola em causa ou a um produto agrícola a partir do qual seja obtido o produto exportado;

d) Concessão de subsídios para reduzir os custos da comercialização dos produtos agrícolas exportados (com excepção dos serviços de promoção das exportações e dos serviços consultivos normalmente disponíveis), incluindo os custos da manutenção e melhoria da qualidade, outros custos de transformação e custos de transporte e de frete internacionais;

e) Custos de transporte e de frete internos relativos às expedições para exportação, assegurados ou mandatados pelas entidades públicas em condições mais favoráveis do que para as expedições internas;

f) Subsídios aos produtos agrícolas subordinados à sua incorporação em produtos a exportar.

2 - a) Com excepção do previsto na alínea b), os níveis de compromisso em matéria de subsídios à exportação para cada ano do período de execução, tal como especificados na lista de um Membro, representam, no que respeita aos subsídios a exportação referidos no n.º 1:

i) No caso dos compromissos de redução das despesas orçamentais, o nível máximo das despesas a título desses subsídios que podem ser previstas ou realizadas durante esse ano relativamente ao produto agrícola ou grupo de produtos em causa; e

ii) No caso dos compromissos de redução das quantidades exportadas, a quantidade máxima de um produto agrícola ou de um grupo de produtos relativamente à qual esses subsídios à exportação podem ser concedidos durante esse ano.

b) Do segundo ao quinto anos do período de execução, um Membro pode, durante um dado ano, conceder os subsídios à exportação enumerados no n.º 1 a níveis superiores aos correspondentes níveis de compromisso anuais em relação aos produtos ou grupos de produtos especificados na parte IV da sua lista, desde que:

i) Os montantes acumulados das despesas orçamentais a título desses subsídios, desde o início do período de execução até ao ano em causa, não excedam os montantes acumulados que teriam resultado do pleno respeito dos níveis de compromissos anuais aplicáveis em matéria de despesas especificados na lista do Membro em mais de 3% do nível dessas despesas orçamentais durante o período de base;

ii) As quantidades acumuladas exportadas com o benefício desses subsídios, desde o início do período de execução até ao ano em causa, não excedam as quantidades acumuladas que teriam resultado do pleno respeito dos níveis de compromisso anuais aplicáveis em matéria de quantidades especificados na lista do Membro em mais de 1,75% das quantidades do período de base;

iii) Os montantes acumulados totais das despesas orçamentais a título desses subsídios à exportação e as quantidades que deles beneficiam durante todo o período de execução não sejam superiores aos totais que teriam resultado do pleno respeito dos níveis de compromisso anuais aplicáveis especificados na lista do Membro; e

iv) As despesas orçamentais do Membro a título dos subsídios à exportação e as quantidades que deles beneficiaram no termo do período de execução não sejam superiores a 64% e 79%, respectivamente, dos níveis do período de base de 1986- -1990. Para os países em desenvolvimento Membros, essas percentagens serão de 76% e 86%, respectivamente.

3 - Os compromissos relativos às limitações em matéria de alargamento do alcance da concessão de subsídios à exportação são os especificados nas listas.

4 - Durante o período de execução, os países em desenvolvimento Membros não serão obrigados a assumir compromissos relativos aos subsídios à exportação enumerados no n.º 1, alíneas d) e e), desde que esses subsídios não sejam aplicados de um modo que equivaleria a contornar os compromissos de redução.

Artigo 10.º

Prevenção da evasão aos compromissos em matéria de subsídios à exportação

1 - Os subsídios à exportação não enumerados no n.º 1 do artigo 9.º não serão aplicados de um modo que conduza ou ameace conduzir a uma evasão aos compromissos em matéria de subsídios à exportação; de igual modo, não poderão realizar-se transacções não comerciais para contornar esses compromissos.

2 - Os Membros comprometem-se a desenvolver esforços para o estabelecimento de disciplinas acordadas a nível internacional para reger a concessão de créditos à exportação, garantias de crédito à exportação ou programas de seguros e a, após acordo sobre essas disciplinas, conceder créditos à exportação, garantias de crédito à exportação ou programas de seguros exclusivamente em conformidade com essas disciplinas.

3 - Qualquer Membro que pretenda que uma quantidade exportada em superação do nível de um compromisso de redução não foi subvencionada deve demonstrar que nenhum subsídio à exportação, constante ou não da lista do artigo 9.º, foi concedido para a quantidade exportada em causa.

4 - Os Membros que forneçam uma ajuda alimentar internacional assegurarão que:

a) A concessão da ajuda alimentar internacional não esteja, directa ou indirectamente, ligada às exportações comerciais de produtos agrícolas destinados aos países beneficiários;

b) As transacções efectuadas no âmbito da ajuda alimentar internacional, incluindo a ajuda alimentar bilateral monetizada, se efectuem em conformidade com os «Princípios da FAO em matéria de escoamento dos excedentes e obrigações consultivas», incluindo, se for caso disso, o sistema das importações comerciais habituais; e

c) Essa ajuda seja fornecida, na medida do possível, integralmente a título de donativos ou em condições não menos favoráveis que as previstas no artigo IV da Convenção de 1986 relativa à ajuda alimentar.

Artigo 11.º

Produtos incorporados

O subsídio unitário pago para um produto primário agrícola incorporado não pode, em caso algum, exceder o subsídio unitário que seria pagável para as exportações do próprio produto primário.

PARTE VI

Artigo 12.º

Disciplinas relativas às proibições e restrições à exportação

1 - Se um Membro instituir uma nova proibição ou restrição à exportação de produtos alimentares em conformidade com o n.º 2, alínea a), do artigo XI do GATT de 1994, observará as seguintes disposições:

a) O Membro que institui a proibição ou restrição à exportação tomará devidamente em consideração os efeitos dessa proibição ou restrição para a segurança alimentar dos Membros importadores;

b) Antes de instituir uma proibição ou restrição à exportação, um Membro enviará, por escrito, ao Comité da Agricultura, tão cedo quanto possível, uma notificação que contenha informações tais como a natureza e a duração dessa medida e realizará consultas, se receber um pedido nesse sentido, com qualquer outro Membro que tenha um interesse substancial, como importador, relativamente a qualquer questão ligada à referida medida. O membro que institui a proibição ou restrição à exportação fornecerá ao referido Membro, a pedido deste, as informações necessárias.

2 - As disposições do presente artigo não serão aplicáveis a um país em desenvolvimento Membro, a não ser que a medida seja tomada por um país em desenvolvimento Membro que seja exportador líquido do produto alimentar em causa.

PARTE VII

Artigo 13.º

Moderação

Durante o período de execução, não obstante as disposições do GATT de 1994 e o Acordo sobre as Subvenções e Medidas de Compensação (referido no presente artigo como o «Acordo sobre as Subvenções»):

a) As medidas de apoio interno que satisfaçam plenamente as disposições do Anexo 2 do presente Acordo:

i) Constituirão subsídios que não dão lugar a uma acção para efeitos da aplicação de direitos compensatórios (ver nota 4);

ii) Ficarão isentas das acções baseadas no artigo XVI do GATT de 1994 e na parte III do Acordo sobre as Subvenções; e

iii) Ficarão isentas das acções baseadas na anulação ou redução, sem violação, das vantagens das concessões patuais resultantes, para um outro Membro, do artigo II do GATT de 1994, na acepção do n.º 1, alínea b), do artigo XXIII do GATT de 1994;

(nota 4) Os «direitos compensatórios», quando referidos no presente artigo, são os que são objecto do artigo VI do GATT de 1994 e da parte V do Acordo sobre as Subvenções e Medidas de Compensação.

b) As medidas de apoio interno que satisfaçam plenamente o disposto no artigo 6.º do presente Acordo, incluindo os pagamentos directos conformes aos requisitos do n.º 5 do referido artigo, tal como constam da lista de cada Membro, bem como o apoio interno nos limites dos níveis de minimis e em conformidade com o n.º 2 do artigo 6.º:

i) Ficarão isentas da imposição de direitos compensatórios, a não ser que seja estabelecida, em conformidade com o artigo VI do GATT de 1994 e com a parte V do Acordo sobre as Subvenções, a existência de um prejuízo ou de uma ameaça de prejuízo, devendo ser feita prova de moderação relativamente à abertura de qualquer inquérito em matéria de direitos compensatórios;

ii) Ficarão isentas das acções baseadas no n.º 1 do artigo XVI do GATT de 1994 ou nos artigos 5.º e 6.º do Acordo sobre as Subvenções, desde que essas medidas não concedam, para um produto determinado, um apoio superior ao que tenha sido decidido durante a campanha de comercialização de 1992; e

iii) Ficarão isentas das acções baseadas na anulação ou redução, sem violação, das vantagens das concessões pautais resultantes, para um outro Membro, do artigo II do GATT de 1994, na acepção do n.º 1, alínea b), do artigo XXIII do GATT de 1994, desde que essas medidas não concedam, para um produto determinado, um apoio superior ao que tenha sido decidido durante a campanha de comercialização de 1992;

c) Os subsídios à exportação que satisfaçam plenamente as disposições da parte V do presente Acordo, tal como constam da lista de cada Membro, ficarão:

i) Sujeitos a direitos compensatórios unicamente após ter sido estabelecida, em conformidade com o artigo VI do GATT de 1994 e com a parte V do Acordo sobre as Subvenções, a existência de um prejuízo ou de uma ameaça de prejuízo baseada no volume, no efeito sobre os preços ou no correspondente impacte, devendo ser feita prova de moderação relativamente à abertura de qualquer inquérito em matéria de direitos compensatório; e

ii) Isentos das acções baseadas no artigo XVI do GATT de 1994 ou nos artigos 3.º, 5.º e 6.º do Acordo sobre as Subvenções.

PARTE VIII

Artigo 14.º

Medidas sanitárias e fitossanitárias

Os Membros acordam em aplicar o Acordo sobre a Aplicação de Medidas Sanitárias e Fitossanitárias.

PARTE IX

Artigo 15.º

Tratamento especial e diferenciado

1 - Dado reconhecer-se que um tratamento diferenciado e mais favorável para os países em desenvolvimento Membros é parte integrante da negociação, será concedido um tratamento especial e diferenciado em matéria de compromissos em conformidade com o indicado nas disposições aplicáveis do presente Acordo e enunciado nas listas de concessões e de compromissos.

2 - Os países em desenvolvimento Membros terão a possibilidade de executar os compromissos de redução durante o período de, no máximo, 10 anos. Os países menos desenvolvidos Membros não serão obrigados a assumir compromissos de redução.

PARTE X

Artigo 16.º

Países menos desenvolvidos e países em desenvolvimento importadores líquidos de produtos alimentares

1 - Os países desenvolvidos Membros tomarão as medidas previstas no âmbito da Decisão relativa às medidas respeitantes aos possíveis efeitos negativos do programa de reforma nos países menos desenvolvidos e nos países em desenvolvimento importadores líquidos de produtos alimentares.

2 - O Comité da Agricultura acompanhará, de modo adequado, o seguimento dado a essa decisão.

PARTE XI

Artigo 17.º

Comité da Agricultura

É instituído um Comité da Agricultura.

Artigo 18.º

Avaliação da execução dos compromissos

1 - O avanço da execução dos compromissos negociados no âmbito do programa de reforma resultante do Uruguay Round será examinado pelo Comité da Agricultura.

2 - Esse exame será efectuado com base nas notificações que os Membros apresentarão, a intervalos a fixar, em relação a questões a determinar, bem como na documentação que o Secretariado pode ser convidado a elaborar para facilitar esse exame.

3 - Para além das notificações que devem ser apresentadas a título do n.º 2, qualquer nova medida de apoio interno ou qualquer alteração de uma medida existente, para as quais seja solicitada a isenção de compromisso de redução, serão notificadas tão cedo quanto possível. A notificação conterá informações pormenorizadas sobre a nova medida ou sobre a medida alterada e sobre a sua conformidade com os critérios acordados constantes do artigo 6.º ou do Anexo 2 do presente acordo.

4 - No âmbito desse exame, os Membros terão devidamente em conta a influência de taxas de inflação excessivas sobre a capacidade de qualquer Membro de honrar os seus compromissos em matéria de apoio interno.

5 - Os membros acordam em realizar anualmente consultas no âmbito do Comité da Agricultura sobre a sua participação no crescimento normal do comércio mundial dos produtos agrícolas no quadro dos compromissos em matéria de subsídios à exportação a título do presente Acordo.

6 - Esse exame proporcionará aos Membros a possibilidade de levantar qualquer questão importante em matéria da execução dos compromissos que se inscrevem no âmbito do programa de reforma tal como enunciados no presente Acordo.

7 - Qualquer Membro pode comunicar ao Comité da Agricultura qualquer medida que considere que deveria ter sido notificada por um outro Membro.

Artigo 19.º

Consultas e resolução de litígios

As disposições dos artigos XXII e XXIII do GATT de 1994, tal como precisadas e aplicadas pelo Memorando de Entendimento sobre a Resolução de Litígios, serão aplicáveis às consultas e à resolução de litígios no âmbito do presente Acordo.

PARTE XII

Artigo 20.º

Continuação do processo de reforma

Reconhecendo que o objectivo a longo prazo de reduções progressivas substanciais do apoio e da protecção que conduzam a uma reforma fundamental obriga a um processo contínuo, os Membros acordam em encetar negociações com vista à continuação do processo um ano antes do termo do período de execução, tendo em conta:

a) A experiência resultante da execução dos compromissos de redução;

b) Os efeitos dos compromissos de redução sobre o comércio mundial dos produtos agrícolas;

c) As razões que não de ordem comercial, o tratamento especial e diferenciado a favor dos países em desenvolvimento Membros e o objectivo de estabelecer um sistema de comércio dos produtos agrícolas que seja equitativo e orientado para o mercado, bem como os outros objectivos e preocupações referidos no preâmbulo do presente Acordo; e

d) Quaisquer outros compromissos que sejam necessários para atingir o objectivo a longo prazo acima referido.

PARTE XIII

Artigo 21.º

Disposições finais

1 - As disposições do GATT de 1994 e dos outros acordos comerciais multilaterais constantes do Anexo 1A do Acordo Que Cria a Organização Mundial do Comércio serão aplicáveis sob reserva das disposições do presente Acordo.

2 - Os anexos do presente Acordo são parte integrante do mesmo.

ANEXO 1

PRODUTOS ABRANGIDOS

1 - O presente Acordo abrangerá os seguintes produtos:

i) Capítulos 1 a 24 do SH, com exclusão do peixe e dos produtos à base de peixe; e ainda (ver nota *)

ii) Código do SH 2905.43 (manitol);

Código do SH 2905.44 (sorbitol);

Posição do SH 33.01 (óleos essenciais);

Posições do SH 35.01 a 35.05 (matérias albuminóides, produtos à base de amidos ou de féculas modificados, colas);

Código do SH 3809.10 (agentes de apresto ou de acabamento);

Código do SH 3823.60 (sorbitol, n. e. n. c. n. p.);

Posições do SH 41.01 a 41.03 (peles);

Posição do SH 43.01 (peles com pêlo em bruto);

Posições do SH 50.01 a 50.03 (seda crua e desperdícios de seda);

Posições do SH 51.01 a 51.03 (lã e pêlos);

Posições do SH 52.01 a 53.03 (algodão cru, desperdícios de algodão e algodão cardado ou penteado);

Posição do SH 53.01 (linho em bruto);

Posição do SH 53.02 (cânhamo em bruto).

2 - As disposições supra-indicadas não limitarão a lista dos produtos abrangidos pelo Acordo sobre a aplicação de Medidas Sanitárias e Fitossanitárias.

(nota *) As designações de produtos entre parênteses não são necessariamente exaustivas.

ANEXO 2

APOIO INTERNO: BASE PARA A ISENÇÃO DOS COMPROMISSOS DE REDUÇÃO

1 - As medidas de apoio interno para as quais seja solicitada a isenção dos compromissos de redução devem satisfazer a condição fundamental de os seus efeitos de distorção sobre o comércio ou os seus efeitos sobre a produção serem nulos ou, quanto muito, mínimos. Por conseguinte, todas as medidas para as quais seja solicitada a referida isenção devem ser conformes aos seguintes critérios de base:

a) O apoio em questão é fornecido no quadro de um programa estatal financiado por fundos públicos (incluindo as receitas públicas não recebidas) que não implique transferências da parte dos consumidores; e

b) O apoio em questão não tem por efeito prestar um apoio aos preços no produtor;

bem como aos critérios e condições correspondentes às várias políticas a seguir indicadas.

Programas de serviços públicos

2 - Serviços de carácter geral. - As políticas da presente categoria dão origem a despesas (ou receitas não recebidas) relacionadas com programas que proporcionam serviços ou vantagens à agricultura ou à comunidade rural. Estas políticas não implicarão pagamentos directos aos produtores ou aos transformadores. Esse programas, que incluem, nomeadamente, os da lista adiante indicada, devem ser conformes aos critérios gerais enunciados no ponto 1 e, se for caso disso, às condições específicas seguintes:

a) Investigação, incluindo a investigação de carácter geral, a investigação ligada aos programas de protecção do ambiente e os programas de investigação relativos a determinados produtos;

b) Luta contra os parasitas e as doenças, incluindo as medidas gerais e as medidas específicas por produto, tais como os sistemas de alerta rápido, a quarentena e a erradicação;

c) Serviços de formação, incluindo os meios de formação geral e especializada;

d) Serviços de divulgação e consultoria, incluindo o fornecimento de meios destinados a facilitar a transferência de informações e dos resultados da investigação para os produtores e os consumidores;

e) Serviços de inspecção, incluindo os serviços de carácter geral e a inspecção de determinados produtos por razões ligadas à saúde, segurança, controlo da qualidade ou normalização;

f) Serviços de comercialização e promoção, incluindo as informações sobre os mercados, a consultoria e a promoção relacionadas com determinados produtos, com exclusão das despesas para fins não especificados que possam ser utilizadas pelos vendedores para reduzir os seus preços de venda ou conferir uma vantagem económica directa aos compradores; e

g) Serviços de infra-estruturas, incluindo as redes eléctricas, estradas e outros meios de transporte, mercados e instalações portuários, sistemas de fornecimento de água, barragens e sistemas de drenagem e infra-estruturas de programas de protecção do ambiente. Em todos os casos, as despesas serão unicamente destinadas a proporcionar ou a construir equipamentos, estando excluído o fornecimento subsidiado de instalações às explorações, com excepção das destinadas à ampliação de redes de serviços públicos geralmente disponíveis. Não estão incluídos os subsídios relativos a factores de produção ou despesas de exploração nem as taxas preferenciais de utilização.

3 - Detenção de existências públicas para fins de segurança alimentar (ver nota 5). - Despesas (ou receitas não recebidas) relacionadas com formação e a detenção de existências de produtos que sejam parte integrante de um programa de segurança alimentar definido na legislação nacional. No âmbito desse programa, pode estar incluída a ajuda pública à armazenagem privada de produtos.

O volume e a formação dessas existências corresponderão a objectivos predeterminados exclusivamente relacionados com a segurança alimentar. O processo de formação e escoamento das existências será transparente do ponto de vista financeiro. As compras de produtos alimentares pelas entidades públicas serão efectuadas aos preços correntes do mercado e as vendas de produtos provenientes das existências de segurança serão realizadas a preços não inferiores ao preço corrente do mercado interno pago pelo produto e pela qualidade em causa.

4 - Ajuda alimentar interna (ver nota 6). - Despesas (ou receitas não recebidas) relacionadas com o fornecimento de ajuda alimentar interna a segmentos da população necessitados.

O direito a beneficiar da ajuda alimentar será determinado em função de critérios claramente definidos ligados a objectivos nutricionais. Essa ajuda consistirá no fornecimento directo de produtos alimentares aos interessados ou no fornecimento, aos que satisfaçam as condições necessárias, de meios que lhes permitam comprar produtos alimentares aos preços de mercado ou a preços subsidiados. As compras de produtos alimentares pelas entidades públicas serão efectuadas aos preços correntes do mercado, devendo o financiamento e a administração da ajuda ser transparentes.

(nota 5) Para efeitos do ponto 3 do presente anexo, os programas estatais de detenção de existências para fins de segurança alimentar nos países em desenvolvimento cujo funcionamento seja transparente e assegurado em conformidade com directrizes ou critérios objectivos publicados oficialmente serão considerados conformes ao disposto no presente ponto, incluindo os programas por força dos quais são adquiridas e desbloqueadas, a preços definidos administrativamente, existências de produtos alimentares para fins de segurança alimentar, desde que a diferença entre o preço de compra e o preço de referência externo seja tomada em conta na MGA.

(nota 5) e (nota 6) Para efeitos dos pontos 3 e 4 do presente anexo, o fornecimento de produtos alimentares a preços subsidiados com o objectivo de satisfazer as necessidades alimentares das populações urbanas e rurais pobres dos países em desenvolvimento numa base regular a preços razoáveis será considerado conforme ao disposto no presente ponto.

5 - Pagamentos directos aos produtores. - O apoio fornecido sob a forma de pagamentos directos aos produtores (ou de receitas não recebidas, incluindo os pagamentos em espécie) para o qual seja solicitada a isenção dos compromissos de redução deve ser conforme aos critérios de base enunciados no ponto 1, bem como aos critérios específicos aplicáveis aos diversos tipos de pagamentos directos enunciados nos pontos 6 a 13. Nos casos em que seja solicitada a referida isenção para um tipo de pagamento directo, já existente ou novo, que não os especificados nos pontos 6 a 13, esse pagamento deve ser conforme não só aos critérios gerais enunciados no ponto 1, mas também aos enunciados nas alíneas b) e e) do ponto 6.

6 - Apoio ao rendimento diferenciado:

a) O direito a beneficiar de pagamentos a este título será determinado de acordo com critérios claramente definidos, tais como o rendimento, a qualidade de produtor ou de proprietário fundiário, a utilização dos factores ou o nível da produção durante um período de base definido e fixo;

b) Para um determinado ano, o montante destes pagamentos não será função nem estabelecido com base no tipo ou no volume da produção (incluindo o número de cabeças normais) realizada pelo produtor durante qualquer ano seguinte ao período de base;

c) Para um determinado ano, o montante destes pagamentos não será função nem estabelecido com bases nos preços, internos ou internacionais, aplicáveis a uma produção realizada durante qualquer ano seguinte ao período de base;

d) Para um determinado ano, o montante destes pagamentos não será função nem estabelecido com base nos factores de produção utilizados durante qualquer ano seguinte ao período de base;

e) Não será obrigatório produzir para poder beneficiar desses pagamentos.

7 - Participação financeira do Estado em programas de garantia dos rendimentos e em programas que estabeleçam um dispositivo de segurança relativo aos rendimentos:

a) O direito a beneficiar de pagamentos a este título estará subordinado a uma perda de rendimento, determinada exclusivamente em relação aos rendimentos provenientes da agricultura, que exceda 30% do rendimento bruto médio ou equivalente em termos de rendimento líquido (não incluindo os pagamentos efectuados no quadro dos mesmos programas ou de programas semelhantes), relativos aos três anos anteriores, ou de uma média trienal baseada nos cinco anos anteriores, com exclusão aos valores mais alto e mais baixo. Qualquer produtor que satisfaça esta condição terá direito a beneficiar desses pagamentos;

b) O montante destes pagamentos compensará menos de 70% da perda de rendimento do produtor durante o ano em que este tenha adquirido o direito a beneficiar dessa ajuda;

c) O montante de qualquer pagamento deste tipo será unicamente função do rendimento; não será função do tipo ou do volume da produção (incluindo o número de cabeças normais) realizada pelo produtos, nem dos preços internos ou internacionais, aplicáveis a essa produção, nem dos factores de produção utilizados;

d) Quando um produtor beneficie no mesmo ano de pagamentos por força do presente ponto e do ponto 8 (ajuda em caso de catástrofes naturais), o total desses pagamentos será inferior a 100% da perda total sofrida.

8 - Pagamentos (efectuados quer directamente, quer através de uma participação financeira do Estado em programas de seguro de colheitas) a título de ajuda em caso de catástrofes naturais:

a) O direito a beneficiar destes pagamentos só ficará estabelecido depois de as autoridades públicas terem formalmente reconhecido que ocorreu ou está a ocorrer uma catástrofe natural ou uma calamidade semelhante (incluindo as epidemias, infestações por parasitas, acidentes nucleares e guerra no território do Membro em causa); esse direito estará subordinado a uma perda de produção que exceda 30% da produção média dos três anos anteriores ou de uma média trienal baseada nos cinco anos anteriores, com exclusão dos valores mais alto e mais baixo;

b) Os pagamentos previstos em caso de catástrofe só serão efectuados em relação às perdas de rendimento, de animais (incluindo os pagamentos relativos ao tratamento veterinário dos mesmos), de terras ou de outros factores de produção, consecutivas à catástrofe natural em causa;

c) Os pagamentos não compensarão mais que o custo total da substituição do que tenha sido perdido, nem implicação qualquer exigência ou especificação relativamente ao tipo ou à quantidade da produção futura;

d) Os pagamentos efectuados durante uma catástrofe não excederão o nível necessário para impedir ou atenuar novas perdas, tal como definidas na alínea b);

e) Quando um produtor beneficie no mesmo ano de pagamentos por força do presente ponto e do ponto 7 (programas de garantia dos rendimentos e programas que estabeleçam um dispositivo de segurança relativo aos rendimentos), o total desses pagamentos será inferior a 100% da perda total sofrida.

9 - Ajuda ao ajustamento das estruturas fornecida através de programas que incentivam os produtores a cessar as suas actividades:

a) O direito a beneficiar de pagamentos a este título será determinado de acordo com critérios claramente definidos em programas destinados a facilitar a cessação de actividade de pessoas que se dediquem a produções agrícolas comercializáveis ou a sua passagem para actividades não agrícolas;

b) Os pagamentos estarão subordinados à condição de os beneficiários abandonarem totalmente e de um modo permanente as produções agrícolas comercializáveis.

10 - Ajuda ao ajustamento das estruturas fornecida através de programas de retirada de recursos da produção:

a) O direito a beneficiar de pagamentos a este título será determinado de acordo com critérios claramente definidos em programas destinados a retirar terras ou outros recursos, incluindo animais, da produção de produtos agrícolas comercializáveis;

b) Os pagamentos estarão subordinados à condição de as terras não serem consagradas, pelo menos durante três anos, a produções agrícolas comercilizáveis e, no caso dos animais, ao seu abate ou à sua retirada permanente e definitiva;

c) Os pagamentos não implicarão qualquer exigência ou especificação quanto a utilizações alternativas dessas terras ou outros recursos que impliquem a produção de produtos agrícolas comercializáveis;

d) Os pagamentos não serão função do tipo ou da quantidade da produção, nem dos preços, internos ou internacionais, aplicáveis à produção realizada nas terras ou com outros recursos que permaneçam consagrados à produção.

11 - Ajuda ao ajustamento das estruturas fornecida através de ajudas ao investimento:

a) O direito a beneficiar de pagamentos a este título será determinado de acordo com critérios claramente definidos em programas estatais destinados a apoiar a reestruturação financeira ou material das actividades de um produtor para remediar desvantagens estruturais cuja existência tenha sido demonstrada de um modo objectivo. O direito a beneficiar deste tipo de programas pode também basear-se num programa estatal claramente definido para a reprivatização de terras agrícolas;

c) Para um determinado ano, o montante destes pagamentos não será função nem estabelecido com base nos preços, internos ou internacionais, aplicáveis a uma produção realizada durante qualquer ano seguinte ao período de base;

d) Os pagamentos só serão efectuados durante o período necessário para a realização do investimento para que são concedidos;

e) Os pagamentos não implicarão qualquer obrigação ou indicação relativamente aos produtos agrícolas que devem ser produzidos pelos beneficiários, excepto se se tratar de proibir a produção de um produto determinado;

f) Os pagamentos serão limitados ao montante necessário para compensar a desvantagem estrutural.

12 - Pagamentos a título de programas de protecção do ambiente:

a) O direito a beneficiar desses pagamentos será determinado no quadro de um programa estatal claramente definido de protecção ou de conservação do ambiente e dependerá da observação de condições específicas previstas por esse programa, incluindo as ligadas aos métodos ou factores de produção;

b) O montante dos pagamentos será limitado aos custos suplementares ou às perdas de rendimento decorrentes do cumprimento do programa estatal.

13 - Pagamentos a título de programas de ajuda regional:

a) O direito a beneficiar destes pagamentos será limitado aos produtores das regiões desfavorecidas. Cada região deste tipo deve ser uma zona geográfica contínua, delimitada de um modo preciso e com uma identidade económica e administrativa definível, considerada desfavorecida com base em critérios neutros e objectivos claramente enunciados na legislação ou na regulamentação que indiquem que as dificuldades da região não são imputáveis a circunstâncias de carácter temporário;

c) Para um determinado ano, o montante destes pagamentos não será função nem estabelecido com base nos preços, internos ou internacionais aplicáveis a uma produção realizada durante qualquer ano seguinte ao período de base;

d) Os pagamentos só serão possíveis em relação aos produtores das regiões que satisfaçam as condições exigidas, podendo, de um modo geral, ser efectuados em relação a todos os produtores dessas regiões;

e) No caso de estarem ligados aos factores de produção, os pagamentos serão efectuados a uma taxa degressiva para além de um limiar fixado para o factor considerado;

f) Os pagamentos serão limitados aos custos suplementares ou às perdas de rendimento decorrentes da realização de uma produção agrícola na região determinada.

ANEXO 3

APOIO INTERNO: CÁLCULO DA MEDIDA GLOBAL DO APOIO

1 - Sob reserva do disposto no artigo 6.º, para cada produto agrícola de base que beneficie de um apoio aos preços de mercado, de pagamentos directos não isentos ou de qualquer outro subsídio não isento do compromisso de redução («outras políticas não isentas») será calculada uma medida global do apoio (MGA). O apoio que não diga especificadamente respeito a produtos será globalmente medido através de uma MGA não referente a produtos, em termos de valor monetário total.

2 - Os subsídios referidos no ponto 1 incluirão simultaneamente as despesas orçamentais e as receitas não recebidas pelas entidades públicas ou seus agentes.

3 - O apoio aos níveis nacional e infranacional será incluído.

4 - Os direitos niveladores ou imposições agrícolas específicas pagas pelos produtores serão deduzidos da MGA.

5 - A MGA calculada como a seguir indicado para o período de base constituíra o nível de base para a execução do compromisso de redução do apoio interno.

6 - Para cada produto agrícola de base, será estabelecida uma MGA específica, expressa em valor monetário total.

7 - A MGA será calculada tão perto quanto possível do ponto da primeira venda do produto agrícola de base em causa As medidas respeitantes aos transformadores agrícolas serão incluídas, na medida em que proporcionem vantagens aos produtores dos produtos agrícolas de base.

8 - Apoio aos preços de mercado: o apoio aos preços de mercado será calculado em função da diferença entre um preço de referência externo fixo e o preço aplicado, definido administrativamente, multiplicada pela quantidade produzida susceptível de beneficiar deste último preço. Os pagamentos orçamentais efectuados para manter essa diferença, tais como custos de compra ou de armazenagem, não serão incluídos na MGA.

9 - O preço de referência externo fixo será estabelecido com base nos anos de 1986 a 1988 e, em geral, será, num país exportador líquido, o valor unitário FOB médio do produto agrícola de base em causa e, num país importador líquido, o valor unitário CIF médio do produto agrícola de base em causa durante o período de base. O preço de referência fixo pode ser ajustado, se necessário, para ter em conta as diferenças de qualidade.

10 - Pagamentos directos não isentos: os pagamentos directos não isentos que dependam de uma diferença dos preços serão calculados quer em funão da direrença entre o preço de referência fixo e o preço aplicado, definido administrativamente, multiplicada pela quantidade produzida susceptível de beneficiar deste último preço, quer em função das despesas orçamentais.

11 - O preço de referência fixo será estabelecido com base nos anos de 1986 a 1988 e, em geral, será o preço real utilizado para determinar as taxas de pagamento.

12 - Os pagamentos directos não isentos baseados em factores que não o preço serão calculados em função das despesas orçamentais.

13 - Outras medidas não isentas, incluindo os subsídios aos factores de produção e outras medidas como as de redução dos custos de comercialização: o valor destas medidas será determinado em função das despesas orçamentais estatais ou, no caso de a utilização das despesas orçamentais não reflectir todo o alcance do subsídio considerado, a base de cálculo deste será a diferença entre o preço do produto ou serviço subsidiado e um preço de mercado representativo para um produto ou serviço semelhante multiplicada pela quantidade do produto ou serviço.

ANEXO 4

APOIO INTERNO: CÁLCULO DA MEDIDA EQUIVALENTE DO APOIO

1 - Sob reserva do disposto no artigo 6.º, serão calculadas medidas equivalentes do apoio no que respeita a todos os produtos agrícolas de base para os quais exista um apoio aos preços de mercado, tal como definido no Anexo 3, mas em relação aos quais o cálculo dessa componente da MGA não seja possível. Para esses produtos, o nível de base a utilizar para a execução dos compromissos de redução do apoio interno incluirá o apoio aos preços de mercado, expresso sob a forma de medidas equivalentes do apoio a título do ponto 2, bem como todos os pagamentos directos não isentos e quaisquer outros apoios não isentos, avaliados em conformidade com o ponto 3. O apoio aos níveis nacional e infranacional será incluído.

2 - As medidas equivalentes do apoio previstas no ponto 1 serão calculadas, tão perto quanto possível do ponto da primeira venda, para cada um dos produtos agrícolas de base que beneficiem de um apoio aos preços de mercado, mas em relação aos quais não seja possível calcular a componente da MGA que mede esse apoio. Para estes produtos agrícolas de base, as medidas equivalentes do apoio aos preços de mercado serão efectuadas utilizando o preço aplicado, definido administrativamente, e a quantidade produzida que satisfaça as condições necessárias para beneficiar desse preço ou, quando tal não seja possível, com base nas despesas orçamentais utilizadas para manter o preço no produtor.

3 - No caso de os produtos agrícolas de base referidos no ponto 1 serem objecto de pagamentos directos não isentos ou de qualquer outro subsídio por produto não isento do compromisso de redução, as medidas equivalentes do apoio respeitante a essas medidas basear-se-ão em cálculos idênticos aos efectuados para componentes correspondentes da MGA (v. pontos 10 a 13 do Anexo 3).

4 - As medidas equivalentes do apoio serão calculadas com base no montante do subsídio tão perto quanto possível do ponto da primeira venda do produto agrícola de base em causa. As medidas respeitantes aos transformadores agrícolas serão incluídas na medida em que proporcionem vantagens aos produtores dos produtos agrícolas de base. Das medidas equivalentes do apoio será deduzido o montante correspondente aos direitos niveladores ou imposições agrícolas específicas pagas pelos produtores.

ANEXO 5

TRATAMENTO ESPECIAL NO QUE RESPEITA AO N.º 2 DO ARTIGO 4.º

SECÇÃO A

1 - A partir da entrada em vigor do Acordo Que Cria a OMC, o disposto no n.º 2 do artigo 4.º não será aplicável a um produto agrícola primário nem aos seus produtos trabalhados e/ou preparados («produtos designados») em relação aos quais sejam satisfeitas as seguintes condições (tratamento a seguir denominado «tratamento especial»):

a) As importações dos produtos designados representaram menos de 3% do consumo interno correspondente durante o período de base de 1986-1988 («o período de base»);

b) Desde o início do período de base, não foi concedido qualquer subsídio à exportação dos produtos designados;

c) São aplicadas ao produto agrícola primário medidas efectivas de restrição da produção;

d) Na secção I-B da parte I da lista de um Membro anexa ao Protocolo de Marráquexe, estes produtos são representados pelo símbolo «TE-Anexo 5», que indica que os produtos em causa são objecto de um tratamento especial que lhe reflecte factores ligados a considerações que não de ordem comercial, como a segurança alimentar e a protecção do ambiente; e

e) Tal como especificado na secção I-B da parte I da lista do Membro em causa, as possibilidades de acesso mínimas para os produtos designados correspondem, a partir do início do primeiro ano do período de execução, a 4% do consumo interno dos produtos designados durante o período de base e, daí em diante, são aumentadas, todos os anos durante o resto do período de execução, de 0,8% do consumo interno correspondente durante o período de base.

2 - No início de qualquer ano do período de execução, um Membro pode deixar de aplicar o tratamento especial para os produtos designados, passando a cumprir o disposto no ponto 6. Nesse caso, o Membro em causa manterá as possibilidades de acesso mínimas já em vigor na altura e aumentará, todos os anos durante o resto do período de execução, as responsabilidades de acesso mínimas de 0,4% do consumo interno correspondente durante o período de base. Daí em diante, o nível das possibilidades de acesso mínimas resultante desta fórmula durante o último ano do período de execução será mantido na lista do Membro em causa.

3 - Qualquer negociação sobre a questão de saber se o tratamento especial enunciado no ponto 1 pode ser mantido após o termo do período de execução deve ser completada até ao termo do próprio período de execução, no âmbito das negociações referidas no artigo 20.º do presente Acordo, tendo em conta os factores ligados a considerações que não de ordem comercial.

4 - Se, na sequência da negociação referida no ponto 3, for acordado que um Membro pode continuar a aplicar o tratamento especial, esse Membro outorgará as concessões adicionais e aceitáveis que tenham sido definidas durante essa negociação.

5 - No caso de o tratamento especial não ser mantido no termo do período de execução, o Membro em causa dará cumprimento ao disposto no ponto 6. Nesse caso, após o termo do período de execução, as possibilidades de acesso mínimas para os produtos designados serão mantidas na lista do Membro em causa ao nível de 8% do consumo interno correspondente durante o período de base.

6 - As medidas aplicadas na fronteira, com excepção dos direitos aduaneiros propriamente ditos, mantidas para os produtos designados estarão sujeitas ao disposto no n.º 2 do artigo 4.º a partir do início do ano em que o tratamento especial deixe de ser aplicado. Os produtos em questão ficarão sujeitos a direitos aduaneiros propriamente ditos, que serão consolidados na lista do Membro em causa e aplicados, a partir do inicio do ano em que o tratamento especial termine e daí em diante, às taxas que teriam sido aplicáveis se tivesse sido efectuada durante o período de execução uma redução de, pelo menos, 15% por fracções anuais iguais. Esses direitos serão estabelecidos com base em equivalentes pautais que serão calculados em conformidade com as directrizes enunciadas no apêndice do presente anexo.

SECÇÃO B

7 - A partir da entrada em vigor do Acordo Que Cria a OMC, o disposto no n.º 2 do artigo 4.º do presente Acordo também não será aplicável a um produto agrícola primário que seja o alimento de base predominante do regime tradicional da população de um país em desenvolvimento Membro e para o qual estejam preenchidas as condições a seguir enunciadas, bem como as especificadas nas alíneas a) a d) do ponto 1, na medida em que se apliquem aos produtos em causa:

a) Tal como especificado na secção I-B da parte I da lista do país em desenvolvimento Membro em questão, as possibilidades de acesso mínimas para os produtos considerados correspondem a partir do início do primeiro ano do período de execução a 1% do consumo interno dos produtos considerados durante o período de base e são aumentadas por fracções anuais iguais para atingirem 2% do consumo interno correspondente durante o período de base no início do quinto ano do período de execução. A partir do início do sexto ano do período de execução, as possibilidades de acesso mínimas para os produtos considerados correspondem a 2% do consumo interno correspondente durante o período de base e são aumentadas por fracções anuais iguais para atingirem 4% do consumo interno correspondente durante o período de base até ao início do décimo ano. Daí em diante, o nível das possibilidades de acesso mínimas resultante desta fórmula no décimo ano será mantido na lista do país em desenvolvimento Membro em causa;

b) Foram previstas possibilidades de acesso ao mercado adequadas para outros produtos a título do presente Acordo.

8 - Qualquer negociação sobre a questão de saber se o tratamento especial enunciado no ponto pode ser mantido após o termo do décimo ano seguinte ao início do período de execução será encetada e completada até ao termo desse mesmo ano.

9 - Se, na sequência da negociação referida no ponto 8, for acordado que um Membro pode continuar a aplicar o tratamento especial, esse Membro outorgará as concessões adicionais e aceitáveis que tenham sido definidas durante essa negociação.

10 - No caso de o tratamento especial enunciado no ponto 7 não ser mantido para além do décimo ano seguinte ao início do período de execução, os produtos considerados ficarão sujeitos a direitos aduaneiros propriamente ditos, estabelecidos com base num equivalente pautal calculado em conformidade com as directrizes enunciadas num apêndice do presente anexo, que serão consolidados na lista do Membro em causa. Além disso, serão aplicáveis as disposições do ponto 6, tal como alteradas pelo tratamento especial e diferenciado aplicável concedido aos países em desenvolvimento Membros em virtude do presente Acordo.

APÊNDICE DO ANEXO 5

Directrizes para o cálculo dos equivalente pautais para os fins específicos indicados nos pontos 6 e 10 do presente anexo.

1 - O cálculo dos equivalentes pautais, quer sejam expressos em direitos ad ou direitos específicos, será efectuado de um modo transparente com base na diferença efectiva entre os preços internos e os preços externos. Os dados utilizados serão os dos anos de 1986 a 1988. Os equivalentes pautais:

a) Serão principalmente estabelecidos ao nível das posições com quatro dígitos do SH;

b) Serão estabelecidos ao nível das posições com seis dígitos do SH, ou a um nível mais pormenorizado, sempre que adequado;

c) Serão geralmente estabelecidos, para os produtos trabalhados e/ou preparados, multiplicando o(s) equivalente(s) pautal(is) específico(s) correspondente(s) ao(s) produto(s) agrícola(s) primário(s) pela(s) proporção(ões), em termos de valor ou em termos físicos, consoante adequado, do(s) produto(s) agrícola(s) primário(s) nos produtos trabalhados e/ou preparados e tendo em conta, sempre que necessário, qualquer elemento adicional que proporcione uma protecção à indústria.

2 - Os preços externos serão, em geral, os valores unitários CIF médios efectivos para o país importador. No caso de os valores unitários médios CIF estarem disponíveis ou não serem adequados, os preços externos:

a) Serão os valores CIF médios adequados de um país próximo; ou

b) Serão estimados a partir dos valores unitários FOB médios de um grande(s) exportador(es) escolhido(s) de modo adequado, acrescidos do montante estimado dos custos de seguro, transporte e outros custos pertinentes suportados pelo país importador.

3 - Os preços externos serão geralmente convertidos em moeda nacional mediante utilização da taxa de câmbio anual média do mercado para o período a que se referem os dados relativos aos preços.

4 - O preço interno será geralmente um preço do comércio grossista representativo que prevaleça no mercado interno, ou uma estimativa desse preço se não existirem dados adequados disponíveis.

5 - Sempre que necessário, para se ter em conta as diferenças de qualidade ou de variedade, os equivalentes pautais iniciais podem ser ajustados através de um coeficiente adequado.

6 - Se um equivalente pautal resultante das presentes directrizes for negativo ou inferior à taxa consolidada corrente, o equivalente pautal inicial pode ser estabelecido ao nível dessa taxa ou com base nas ofertas nacionais relativas ao produto em causa.

7 - No caso de o nível de um equivalente pautal resultante das directrizes supra-indicadas ser ajustado, o Membro em causa facultará, se nesse sentido receber pedidos, todas as possibilidades de consulta com vista à negociação de soluções adequadas.

ACORDO RELATIVO À APLICAÇÃO DE MEDIDAS SANITÁRIAS E FITOSSANITÁRIAS

Os Membros:

Reafirmando que nenhum Membro deve ser impedido de adoptar ou aplicar medidas necessárias à protecção da saúde e da vida das pessoas e dos animais ou à protecção vegetal, desde que essas medidas não sejam aplicadas de modo a constituírem quer um meio de discriminação arbitrária ou injustificada entre os Membros em que existam as mesmas condições, quer uma restrição disfarçada ao comércio internacional;

Desejosos de melhorar a saúde pública, a sanidade animal e a situação fitossanitária em todos os Membros;

Notando que as medidas sanitárias e fitossanitárias são muitas vezes aplicadas com base em acordos ou protocolos bilaterais;

Desejando o estabelecimento de um quadro multilateral de regras e disciplinas para orientar a adopção, elaboração e aplicação das medidas sanitárias e fitossanitárias, de modo a reduzir ao mínimo os seus efeitos negativos sobre o comércio;

Reconhecendo a importante contribuição das normas, directrizes e recomendações internacionais neste domínio;

Desejosos de promover a utilização de medidas sanitárias e fitossanitárias harmonizadas entre os Membros, com base em normas, directrizes e recomendações internacionais elaboradas pelas organizações internacionais competentes, nomeadamente a Comissão do Codex Alimentarius, o Gabinete Internacional de Epizootias e as organizações internacionais e regionais competentes que actuam no âmbito da Convenção Fitossanitária Internacional, sem exigir dos Membros que alterem o nível de protecção da saúde e da vida das pessoas e dos animais ou de protecção vegetal que considerem adequado;

Reconhecendo que os países em desenvolvimento Membros podem encontrar dificuldades especiais na aplicação das medidas sanitárias ou fitossanitárias dos Membros importadores e, por conseguinte, no acesso aos mercados, bem como na elaboração e aplicação de medidas sanitárias ou fitossanitárias no seu próprio território, e desejando apoiá-los nos seus esforços nesse sentido;

Desejosos, em consequência, de elaborar regras para a aplicação das disposições do GATT de 1994 relativas à utilização de medidas sanitárias ou fitossanitárias, em especial as disposições do artigo XX, alínea b) (ver nota 1);

(nota 1) No presente Acordo, a referência ao artigo XX, alínea b), inclui também o proémio do referido artigo.

acordam no seguinte:

Artigo 1.º

Disposições gerais

1 - O presente Acordo é aplicável a todas as medidas sanitárias e fitossanitárias que podem, directa ou indirectamente, afectar o comércio internacional. Essas medidas serão elaboradas e aplicadas em conformidade com o disposto no presente Acordo.

2 - Para efeitos do presente Acordo, serão aplicáveis as definições constantes do Anexo A.

3 - Os anexos do presente Acordo são parte integrante deste.

4 - Nenhuma disposição do presente Acordo afectará os direitos dos Membros decorrentes do Acordo sobre os Obstáculos Técnicos ao Comércio no que respeita às medidas que não se inscrevam no âmbito do presente Acordo.

Artigo 2.º

Direitos e obrigações fundamentais

1 - Os Membros têm o direito de adoptar as medidas sanitárias e fitossanitárias necessárias à protecção da saúde e da vida das pessoas e dos animais ou à protecção vegetal, desde que essas medidas não sejam incompatíveis com o disposto no presente Acordo.

2 - Os Membros assegurarão que qualquer medida sanitária ou fitossanitária só seja aplicada na medida necessária à protecção da saúde e da vida das pessoas e dos animais ou à protecção vegetal, seja baseada em princípios científicos e não seja mantida sem provas científicas suficientes, com excepção do previsto no n.º 7 do artigo 5.º

3 - Os Membros assegurarão que as suas medidas sanitárias e fitossanitárias não estabeleçam discriminações arbitrárias ou injustificadas entre os Membros em que existam condições idênticas ou semelhantes, incluindo entre o seu próprio território e os dos outros Membros. As medidas sanitárias e fitossanitárias não serão aplicadas de modo a constituírem restrições disfarçadas ao comércio internacional.

4 - As medidas sanitárias ou fitossanitárias conformes às disposições aplicáveis do presente Acordo serão consideradas como satisfazendo as obrigações que incumbem aos Membros por força das disposições do GATT de 1994 relativas à utilização das medidas sanitárias ou fitossanitárias, em especial as do artigo XX, alínea b).

Artigo 3.º

Harmonização

1 - A fim de harmonizar o mais amplamente possível as medidas sanitárias e fitossanitárias, os Membros estabelecerão as suas medidas sanitárias ou fitossanitárias com base em normas, directrizes ou recomendações internacionais, caso existam, salvo disposição em contrário do presente Acordo, em especial as disposições do n.º 3.

2 - As medidas sanitárias ou fitossanitárias conformes às normas, directrizes ou recomendações internacionais serão consideradas necessárias à protecção da vida e da saúde das pessoas e dos animais ou à protecção vegetal e compatíveis com as disposições aplicáveis do presente Acordo e do GATT de 1994.

3 - Os Membros podem introduzir ou manter medidas sanitárias ou fitossanitárias que resultem num nível de protecção sanitária ou fitossanitária mais elevado que o que seria conseguido através de medidas baseadas nas normas, directrizes ou recomendações internacionais aplicáveis, se existir uma justificação científica ou se tal for consequência do nível de protecção sanitária ou fitossanitária que um Membro considere adequado em conformidade com as disposições aplicáveis dos n.os 1 a 8 do artigo 5.º (ver nota 2). Não obstante o que precede, nenhuma medida que resulte num nível de protecção sanitária ou fitossanitária diferente do que seria conseguido através de medidas baseadas nas normas, directrizes ou recomendações internacionais será incompatível com qualquer outra disposição do presente Acordo.

4 - Os Membros participarão plenamente, nos limites dos seus recursos, nas actividades das organizações internacionais competentes e dos seus órgãos subsidiários, em especial a Comissão do Codex Alimentarius e o Gabinete Internacional de Epizootias, e das organizações internacionais e regionais que actuem no âmbito da Convenção Fitossanitária Internacional, a fim de promover, nessas organizações, a elaboração e o exame periódico de normas, directrizes e recomendações no que respeita a todos os aspectos das medidas sanitárias e fitossanitárias.

5 - Tal como previsto nos n.os 1 e 4 do artigo 12.º, o Comité das Medidas Sanitárias e Fitossanitárias (designado no presente Acordo por «Comité») estabelecerá um procedimento para acompanhar o processo de harmonização internacional e coordenar os esforços na matéria com as organizações internacionais competentes.

(nota 2) Para efeitos do n.º 3 do artigo 3.º, considera-se que existe justificação científica se, com base num exame e avaliação dos dados científicos disponíveis em conformidade com as disposições aplicáveis do presente Acordo, um Membro determinar que as normas, directrizes ou recomendações internacionais aplicáveis não são suficientes para conseguir o nível de protecção sanitária ou fitossanitária que considera adequado.

Artigo 4.º

Equivalência

1 - Os Membros aceitarão as medidas sanitárias ou fitossanitárias de outros Membros como equivalentes, mesmo que difiram das suas ou das que são utilizadas por outros Membros que se dediquem ao comércio do mesmo produto, se o Membro exportador demonstrar objectivamente ao Membro importador que, com as suas medidas, é atingido o nível adequado de protecção sanitária ou fitossanitária no Membro importador. Para o efeito, será facultado ao Membro importador que o solicite um acesso razoável para a realização de inspecções, ensaios e outros procedimentos pertinentes.

2 - Sempre que solicitado, os Membros aceitarão a realização de consultas com vista à conclusão de acordos bilaterais e multilaterais sobre o reconhecimento da equivalência de medidas sanitárias ou fitossanitárias determinadas.

Artigo 5.º

Avaliação dos riscos e determinação do nível adequado de protecção sanitária ou fitossanitária

1 - Os Membros assegurarão que as suas medidas sanitárias ou fitossanitárias sejam estabelecidas com base numa avaliação, realizada de uma forma adequada às circunstâncias, dos riscos para a saúde e a vida das pessoas e dos animais ou para a protecção vegetal, tendo em conta as técnicas de avaliação de riscos desenvolvidas pelas organizações internacionais competentes.

2 - Na avaliação dos riscos, os Membros terão em conta provas científicas disponíveis, processos e métodos de produção pertinentes, métodos de inspecção, amostragem e ensaio aplicáveis, ocorrência de doenças ou parasitas específicos, existência de zonas indemnes de parasitas ou doenças, condições ecológicas e ambientais pertinentes e regimes de quarentena ou outros.

3 - Para avaliar o risco para a saúde e a vida dos animais ou para a protecção vegetal e determinar a medida a aplicar para conseguir o nível adequado de protecção sanitária ou fitossanitária contra esse risco, os Membros terão em conta, como factores económicos pertinentes: o prejuízo potencial em termos de perda de produção ou de vendas em caso de introdução, estabelecimento ou propagação de um parasita ou de uma doença, os custos da luta ou da erradicação no território do Membro importador e a relação custo-eficácia de outras abordagens alternativas para limitar os riscos.

4 - Aquando da determinação do nível adequado de protecção sanitária ou fitossanitária, os Membros devem ter em conta o objectivo de reduzir ao mínimo os efeitos negativos sobre o comércio.

5 - Com o objectivo de assegurar a coerência na aplicação do conceito de nível adequado de protecção sanitária ou fitossanitária contra os riscos para a saúde e a vida das pessoas e dos animais ou para a protecção vegetal, cada Membro evitará estabelecer distinções arbitrárias ou injustificadas nos níveis que considere adequados em situações diferentes, caso essas distinções resultem numa discriminação ou numa restrição disfarçada ao comércio internacional. Os Membros cooperarão no Comité, em conformidade com os n.os 1, 2 e 3 do artigo 12.º do presente Acordo para elaborar directrizes destinadas a favorecer a aplicação prática da presente disposição. Para elaborar essas directrizes, o Comité terá em conta todos os factores pertinentes, incluindo o carácter excepcional dos riscos para a saúde aos quais as pessoas se expõem voluntariamente.

6 - Sem prejuízo do disposto no n.º 2 do artigo 3.º, quando estabelecerem ou mantiverem medidas sanitárias ou fitossanitárias para conseguir o nível adequado de protecção sanitária ou fitossanitária, os Membros assegurarão que essas medidas não sejam mais restritivas para o comércio do que o necessário para conseguir o nível de protecção sanitária ou fitossanitária que considerem adequado, tendo em conta a viabilidade técnica e económica (ver nota 3).

7 - Quando as provas científicas pertinentes foram insuficientes, um Membro pode adoptar provisoriamente medidas sanitárias ou fitossanitárias com base nas informações pertinentes disponíveis, incluindo as provenientes das organizações internacionais competentes e as que resultem das medidas sanitárias ou fitossanitárias aplicadas por outros Membros. Nessas circunstâncias, os Membros esforçar-se-ão por obter as informações adicionais necessárias para proceder a uma avaliação mais objectiva do risco e examinarão, em consequência, a medida sanitária ou fitossanitária num prazo razoável.

8 - Sempre que um Membro tenha razões para crer que uma medida sanitária ou fitossanitária específica introduzida ou mantida por outro Membro cria, ou pode criar, um obstáculo às suas exportações e que essa medida não se baseia nas normas, directrizes ou recomendações internacionais aplicáveis, ou que tais normas, directrizes ou recomendações não existem, pode ser solicitada, devendo ser fornecida pelo Membro que mantém a medida, uma explicação das razões dessa medida sanitária ou fitossanitária.

(nota 3) Para efeitos do n.º 6 do artigo 5.º, nenhuma medida será mais restritiva para o comércio que o necessário, a menos que exista uma outra medida, razoavelmente aplicável tendo em conta a viabilidade técnica e económica, que permita conseguir o nível de protecção adequado e seja significativamente menos restritiva para o comércio.

Artigo 6.º

Adaptações às condições regionais, incluindo as zonas indemnes de parasitas ou de doenças e as zonas com fraca ocorrência de parasitas ou de doenças.

1 - Os Membros assegurarão que as suas medidas sanitárias ou fitossanitárias sejam adaptadas às características sanitárias ou fitossanitárias da região de origem e de destino do produto - quer se trate da totalidade ou parte de um país ou da totalidade ou partes de vários países. Para avaliar as características sanitárias ou fitossanitárias de uma região, os Membros terão em conta, nomeadamente, o grau de ocorrência de doenças ou de parasitas específicos, a existência de programas de erradicação ou de luta e directrizes ou critérios adequados que possam ser elaborados pelas organizações internacionais competentes.

2 - Os Membros reconhecerão, nomeadamente, os conceitos de zonas indemnes de parasitas ou doenças e de zonas com fraca ocorrência de parasitas ou doenças. A determinação dessas zonas basear-se-á em factores como a geografia, ecossistemas, vigilância epidemiológica e eficácia dos controlos sanitários ou fitossanitários.

3 - Os Membros exportadores que declarem que zonas do seu território são zonas indemnes de parasitas ou doenças ou zonas com fraca ocorrência de parasitas ou doenças fornecerão as provas necessárias para demonstrar objectivamente ao Membro importador que essas zonas são, e provavelmente permanecerão, zonas de parasitas ou doenças ou zonas com fraca ocorrência de parasitas ou doenças, respectivamente. Para o efeito, será facultado ao Membro importador que o solicite um acesso razoável para a realização de inspecções, ensaios e outros procedimentos pertinentes.

Artigo 7.º

Transparência

Os Membros notificarão as alterações das suas medidas sanitárias ou fitossanitárias e fornecerão informações sobre essas medidas em conformidade com o disposto no Anexo B.

Artigo 8.º

Procedimentos de controlo, inspecção e homologação

Os Membros respeitarão as disposições do Anexo C na aplicação dos procedimentos de controlo, inspecção e homologação, inclusive no que respeita aos sistemas nacionais de homologação da utilização de aditivos ou de estabelecimento de tolerâncias para os contaminantes nos produtos alimentares, bebidas ou alimentos para animais, e, além disso, assegurarão que os seus procedimentos não sejam incompatíveis com as disposições do presente Acordo.

Artigo 9.º

Assistência técnica

1 - Os Membros acordam em facilitar a concessão de assistência técnica a outros Membros, em especial aos países em desenvolvimento Membros, quer a nível bilateral, quer por intermédio das organizações internacionais adequadas. Essa assistência pode respeitar, nomeadamente, aos domínios das técnicas de transformação, da investigação e das infra-estruturas, inclusive para a criação de organismos reguladores nacionais, e pode assumir a forma de consultoria, créditos, donativos e ajudas, nomeadamente para garantir serviços de peritagem técnica, formação e equipamento, a fim de permitir que os referidos países se adaptem e respeitem as medidas sanitárias ou fitossanitárias necessárias para atingirem o nível adequado de protecção sanitária ou fitossanitária nos seus mercados de exportação.

2 - Nos casos em que sejam necessários investimentos substanciais para que um país em desenvolvimento Membro exportador respeite as exigências sanitárias ou fitossanitárias de um Membro importador, este último considerará a possibilidade de conceder uma assistência técnica que permita ao país em desenvolvimento Membro manter e aumentar as suas possibilidades de acesso ao mercado para o produto em questão.

Artigo 10.º

Tratamento especial e diferenciado

1 - Na elaboração e aplicação das medidas sanitárias ou fitossanitárias, os Membros terão em conta as necessidades especiais dos países em desenvolvimento Membros, nomeadamente dos menos desenvolvidos.

2 - Nos casos em que o nível adequado de protecção sanitária ou fitossanitária permita a introdução progressiva de novas medidas sanitárias ou fitossanitárias, devem ser concedidos prazos mais longos para observância destas no que respeita aos produtos com interesse para os países em desenvolvimento Membros, a fim de preservar as suas possibilidades de exportação.

3 - Com vista a permitir que os países em desenvolvimento Membros respeitem as disposições do presente Acordo, o Comité fica habilitado a conceder a esses países, caso os mesmos o solicitem, derrogações específicas e limitadas no tempo, totais ou parciais, em relação às obrigações resultantes do presente Acordo, tendo em conta as suas necessidades em termos de finanças, comércio e desenvolvimento.

4 - Os Membros devem incentivar e facilitar a participação activa dos países em desenvolvimento Membros nos trabalhos das organizações internacionais competentes.

Artigo 11.º

Consultas e resolução dos litígios

1 - As disposições dos artigos XXII e XXIII do GATT de 1994, tal como definidas e aplicadas pelo Memorando de Entendimento sobre a Resolução de Litígios, aplicar-se-ão às consultas e à resolução de litígios a título do presente Acordo, salvo disposição em contrário neste expressa.

2 - Quando se levantem questões científicas ou técnicas no quadro de um litígio no âmbito da aplicação do presente Acordo, um painel deve solicitar o parecer de peritos escolhidos pelo próprio painel em consulta com as partes em litígio. Para o efeito, o painel pode, se o considerar adequado, criar um grupo consultivo de peritos técnicos ou consultar as organizações internacionais competentes, a pedido de uma ou outra das partes em litígio ou por sua própria iniciativa.

3 - Nenhuma disposição do presente acordo prejudicará os direitos dos Membros decorrentes de outros acordos internacionais, incluindo o direito de recorrer aos bons ofícios ou aos mecanismos de resolução de litígios de outras organizações internacionais ou estabelecidos no âmbito de qualquer acordo internacional.

Artigo 12.º

Gestão

1 - É instituído um Comité das Medidas Sanitárias e Fitossanitárias para permitir a realização regular de consultas. Esse Comité exercerá as funções necessárias à aplicação das disposições do presente Acordo e à prossecução dos seus objectivos, em especial no que respeita à harmonização. As suas decisões serão adoptadas por consenso.

2 - O Comité incentivará e facilitará a realização de consultas ou negociações ad hoc entre os seus Membros sobre questões sanitárias ou fitossanitárias específicas. O Comité incentivará a utilização das normas, directrizes ou recomendações internacionais por todos os Membros e, para tal, mandará realizar consultas e estudos técnicos com o objectivo de aumentar a coordenação e a integração entre os sistemas e abordagens adoptados aos níveis internacional e nacional para a homologação da utilização de aditivos alimentares ou o estabelecimento de tolerâncias relativas aos contaminantes nos produtos alimentares, bebidas e alimentos para animais.

3 - O Comité manterá relações estreitas com as organizações internacionais competentes no domínio da protecção sanitária e fitossanitária, em especial com a Comissão do Codex Alimentarius, o Gabinete Internacional de Epizootias e o Secretariado da Convenção Fitossanitária Internacional, a fim de obter os melhores pareceres científicos e técnicos disponíveis para gestão do presente Acordo e evitar qualquer duplicação inútil de esforços.

4 - O Comité definirá um procedimento para vigiar o processo de harmonização internacional e a utilização das normas, directrizes ou recomendações internacionais. Para o efeito, o Comité deve, em conjunto com as organizações internacionais competentes, estabelecer uma lista das normas, directrizes ou recomendações internacionais relativas às medidas sanitárias ou fitossanitárias que considere terem uma incidência importante no comércio. A lista deve incluir indicações dos Membros que especifiquem as normas, directrizes ou recomendações internacionais que aplicam como condições de importação ou com base nas quais os produtos importados conformes a essas normas podem ter acesso aos seus mercados. No caso de um Membro não aplicar uma norma, directriz ou recomendação internacional como condição de importação, deve indicar a razão para tal e, em especial, precisar se considera que a norma não é suficientemente rigorosa para assegurar o nível adequado de protecção sanitária ou fitossanitária. Se, após ter indicado que utiliza uma norma, directriz ou recomendação como condição de importação, um Membro alterar a sua posição, deve justificar essa alteração e comunicá-la ao Secretariado, bem como às organizações internacionais competentes, a menos que essas notificação e justificação sejam apresentadas em conformidade com os procedimentos previstos no Anexo B.

5 - Para evitar uma duplicação inútil, o Comité pode decidir, consoante adequado, utilizar as informações obtidas no âmbito dos procedimentos, nomeadamente de notificação, em vigor nas organizações internacionais competentes.

6 - O Comité pode, por iniciativa de um dos Membros, convidar, pelas vias adequadas, as organizações internacionais competentes ou os seus órgãos subsidiários a examinar questões específicas relativas a uma norma, directriz ou recomendação específica, incluindo a fundamentação das justificações relativas à não utilização dadas em conformidade com o n.º 4.

7 - O Comité examinará o funcionamento e a aplicação do presente Acordo três anos após a entrada em vigor do Acordo Que Cria a Organização Mundial do Comércio, e, daí em diante, sempre que necessário. Quando adequado, o Comité pode apresentar ao Conselho do Comércio de Mercadorias propostas de alteração do texto do presente Acordo, tendo em conta, nomeadamente, a experiência adquirida durante a sua aplicação.

Artigo 13.º

Aplicação

1 - Os Membros são plenamente responsáveis a título do presente Acordo pelo respeito de todas as obrigações nele enunciadas. Os Membros elaborarão e aplicarão medidas e mecanismos positivos para favorecer o respeito das disposições do presente Acordo pelas instituições que não as das administrações centrais. Os Membros tomarão todas as medidas razoáveis ao seu alcance para assegurar que as entidades não governamentais existentes no seu território, bem como os organismos regionais dos quais entidades competentes situadas nos seus territórios sejam Membros, respeitem as disposições aplicáveis do presente Acordo. Além disso, os Membros não tomarão medidas que tenham por efeito, directa ou indirectamente, obrigar ou incentivar essas entidades regionais ou não governamentais, ou as instituições públicas locais, a agir de um modo incompatível com as disposições do presente Acordo. Os Membros assegurar-se-ão de que só recorrerão aos serviços de entidades não governamentais para a aplicação de medidas sanitárias ou fitossanitárias se essas entidades respeitarem as disposições do presente Acordo.

Artigo 14.º

Disposições finais

1 - Os países menos desenvolvidos Membros podem protelar a aplicação das disposições do presente Acordo por um período de cinco anos a contar da data de entrada em vigor do Acordo Que Cria a OMC no que respeita às suas medidas sanitárias ou fitossanitárias que afectem a importação ou os produtos importados. Os restantes países em desenvolvimento Membros podem diferir a aplicação das disposições do presente Acordo, com excepção das do n.º 8 do artigo 5.º e do artigo 7.º, por um período de dois anos a contar da data da entrada em vigor do Acordo Que Cria a OMC no que respeita às suas medidas sanitárias ou fitossanitárias que afectem a importação ou os produtos importados, quando essa aplicação seja impedida pela falta de conhecimentos, infra-estruturas ou recursos técnicos.

ANEXO A

DEFINIÇÕES (ver nota 4)

1 - Medida sanitária ou fitossanitária. - Qualquer medida aplicada:

a) Para proteger, no território do Membro, a saúde e a vida dos animais ou preservar os vegetais dos riscos decorrentes da entrada, estabelecimento ou propagação de parasitas, doenças, organismos portadores de doenças ou organismos patogénicos;

b) Para proteger, no território do Membro, a saúde e a vida das pessoas e dos animais dos riscos decorrentes dos aditivos, contaminantes, toxinas ou organismos patogénicos presentes nos produtos alimentares, bebidas ou alimentos para animais;

c) Para proteger, no território do Membro, a saúde e a vida das pessoas dos riscos decorrentes de doenças veiculadas por animais, plantas ou seus produtos, ou da entrada, estabelecimento ou propagação de parasitas; ou

d) Para impedir ou limitar, no território do Membro, outros danos decorrentes da entrada, estabelecimento ou propagação de parasitas.

As medidas sanitárias ou fitossanitárias incluem todas as leis, decretos, regulamentações, prescrições e procedimentos aplicáveis, incluindo, nomeadamente, os critérios relativos ao produto final; os processos e métodos de produção; os processos de ensaio, inspecção, certificação e homologação; os regimes de quarentena, incluindo as prescrições aplicáveis ao transporte de animais ou vegetais ou às matérias necessárias à sua sobrevivência durante o transporte; as disposições relativas aos métodos estatísticos, processos de amostragem e métodos de avaliação dos riscos e as prescrições em matéria de embalagem e de rotulagem directamente ligadas à inocuidade dos produtos alimentares.

2 - Harmonização. - Estabelecimento, reconhecimento e aplicação de medidas sanitárias e fitossanitárias comuns por diferentes Membros.

3 - Normas, directrizes e recomendações internacionais:

a) No que respeita à inocuidade dos produtos alimentares, as normas, directrizes e recomendações estabelecidas pela Comissão do Codex Alimentarius em relação aos aditivos alimentares, resíduos de medicamentos veterinários e de pesticidas, contaminantes e métodos de análise e de amostragem, bem como os códigos e as directrizes em matéria de higiene;

b) No que respeita à saúde dos animais e às zoonoses, as normas, directrizes e recomendações elaboradas sob os auspícios do Gabinete Internacional de Epizootias;

c) No que respeita à protecção vegetal, as normas, directrizes e recomendações internacionais elaboradas sob os auspícios do Secretariado da Convenção Fitossanitária Internacional em cooperação com as organizações regionais que actuam no âmbito da referida Convenção; e

d) No que respeita às questões não incluídas no âmbito das organizações atrás referidas, as normas, directrizes e recomendações adequadas promulgadas por outras organizações internacionais competentes abertas a todos os Membros e identificadas pelo Comité.

4 - Avaliação dos riscos. - Avaliação da probabilidade de entrada, estabelecimento ou propagação de um parasita ou de uma doença no território de um Membro importador em função das medidas sanitárias e fitossanitárias que poderiam ser aplicadas e das consequências biológicas e económicas que daí poderiam resultar, ou avaliação dos eventuais efeitos negativos que a presença de aditivos, contaminantes, toxinas ou organismos patogénicos nos produtos alimentares e nas bebidas e alimentos para animais pode ocasionar para a saúde das pessoas e dos animais.

5 - Nível adequado de protecção sanitária ou fitossanitária. - Nível de protecção considerado adequado pelo Membro que estabelece uma medida sanitária ou fitossanitária para proteger a saúde e a vida das pessoas e dos animais ou proteger os vegetais no seu território.

Nota. - Numerosos Membros designam este conceito como «nível aceitável de risco».

6 - Zona indemne de parasitas ou de doenças. - Zona, quer se trate da totalidade ou parte de um país ou da totalidade ou partes de vários países, identificada pelas autoridades competentes, na qual não ocorre um parasita ou uma doença.

Nota. - Uma zona indemne de parasitas ou de doenças pode cercar uma zona, ser cercada por uma zona ou ser adjacente a uma zona - quer se trate de uma parte de um país ou de uma região geográfica que engloba partes ou a totalidade de vários países - na qual se sabe que ocorre um parasita ou uma doença específica, mas que é objecto de medidas regionais de controlo, tais como o estabelecimento de uma protecção; de uma vigilância e de zonas-tampão que circunscreverão ou erradicarão o parasita ou a doença em causa.

7 - Zona com fraca ocorrência de parasitas ou de doenças. - Zona, quer se trate da totalidade ou parte de um país ou da totalidade ou partes de vários países, identificada pelas autoridades competentes, em que ocorre um parasita ou uma doença específica a níveis reduzidos e que é objecto de medidas eficazes de vigilância, de luta ou de erradicação.

(nota 4) Para efeitos destas definições, o termo «animais» engloba os peixes e a fauna selvagem; o termo «vegetais» engloba as florestas e a flora selvagem; o termo «parasitas» engloba as ervas daninhas e o termo «contaminantes» engloba os resíduos de pesticidas e de medicamentos veterinários e os corpos estranhos.

ANEXO B

TRANSPARÊNCIA DAS REGULAMENTAÇÕES SANITÁRIAS E FITOSSANITÁRIAS

Publicação das regulamentações

1 - Os Membros assegurarão que todas as regulamentações sanitárias e fitossanitárias (ver nota 5) que tenham sido adoptadas sejam publicadas o mais rapidamente possível, de modo a permitir que os Membros interessados tomem conhecimento das mesmas.

2 - Excepto em caso de urgência, os Membros procederão de modo a que decorra um período razoável entre a publicação de uma regulamentação sanitária ou fitossanitária e a sua entrada em vigor, para deixar aos produtores dos Membros exportadores, em especial dos países em desenvolvimento Membros, o tempo de adaptarem os seus produtos e métodos de produção às exigências do Membro importador.

(nota 5) Medidas sanitárias e fitossanitárias tais como leis, decretos ou despachos de aplicação geral.

Pontos de informação

3 - Cada Membro assegurará a existência de um ponto de informação encarregado de responder a todas as questões pertinentes colocadas por Membros interessados e de fornecer os documentos pertinentes relativos:

a) A qualquer regulamentação sanitária ou fitossanitária adoptada ou projectada no seu território;

b) A quaisquer procedimentos de controlo e de inspecção, regimes de produção e de quarentena e aos pesticidas e a homologação dos aditivos alimentares que sejam aplicados no seu território;

c) Aos procedimentos de avaliação dos riscos, aos factores tomados em consideração e à determinação do nível adequado de protecção sanitária ou fitossanitária;

d) À pertença ou participação desse Membro ou organismos competentes situados no seu território em organizações e sistemas sanitários e fitossanitários internacionais e regionais, bem como em acordos e convénios bilaterais e multilaterais no âmbito do presente Acordo, e aos textos desses acordos e convénios.

4 - Os Membros assegurarão que, no caso de serem solicitados exemplares de documentos por Membros interessados, esses exemplares sejam fornecidos aos requerentes ao preço (se existir), com excepção das despesas de expedição, a que são fornecidos aos nacionais (ver nota 6) do Membro em causa.

(nota 6) No âmbito do presente Acordo, o termo «nacionais» abrange, no que respeita a um território aduaneiro distinto Membro da OMC, as pessoas, singulares ou colectivas, que estejam domiciliadas ou que possuam um estabelecimento industrial ou comercial, real e efectivo nesse território aduaneiro.

Procedimentos de notificação

5 - Sempre que não exista qualquer norma, directriz ou recomendação internacional ou que o teor de uma regulamentação sanitária ou fitossanitária projectada não seja, em substância, idêntico ao de uma norma, directriz ou recomendação internacional, e se essa regulamentação puder ter um efeito considerável sobre o comércio de outros Membros, os Membros:

a) Publicarão rapidamente um anúncio que permita que os Membros interessados tomem conhecimento do projecto de adopção de uma regulamentação determinada;

b) Notificarão os outros Membros, por intermédio do Secretariado, dos produtos que serão abrangidos pela regulamentação, indicando resumidamente o objectivo e a razão de ser da regulamentação projectada. Essas notificações serão efectuadas o mais rapidamente possível, quando ainda possam ser introduzidas alterações e ser tomadas em consideração as observações formuladas;

c) Fornecerão, mediante pedido, aos outros Membros o texto da regulamentação projectada e, sempre que possível, identificarão os elementos que, em substância, diferem das normas, directrizes ou recomendações internacionais;

d) Sem discriminação, deixarão aos outros Membros um prazo razoável que lhes permita apresentar as suas observações por escrito, debaterão essas observações, se solicitado, e terão em conta essas observações e os resultados desses debates.

6 - Todavia, quando se coloquem ou ameacem colocar-se a um Membro problemas urgentes de protecção da saúde, esse Membro pode, se o julgar necessário, omitir uma ou outra das etapas enumeradas no n.º 5 do presente anexo desde que:

a) Notifique imediatamente os outros Membros, por intermédio do Secretariado, da regulamentação em causa e dos produtos abrangidos, indicando resumidamente o objectivo e a razão de ser da regulamentação, incluindo a natureza do(s) problema(s) urgente(s);

b) Forneça, mediante pedido, aos outros Membros o texto da regulamentação;

c) Deixe aos outros Membros a possibilidade de apresentarem as suas observações por escrito, debata essas observações, se solicitado, e tenha em conta essas observações e os resultados desses debates.

7 - As notificações dirigidas ao Secretariado serão redigidas em francês, inglês ou espanhol.

8 - Os países desenvolvidos Membros fornecerão, se outros Membros o solicitarem, em francês, inglês ou espanhol, exemplares ou, se se tratar de documentos volumosos, resumos dos documentos respeitantes a uma notificação específica.

9 - O Secretariado comunicará, o mais rapidamente possível, o texto da notificação a todos os Membros e a todas as organizações internacionais interessadas e chamará a atenção dos países em desenvolvimento Membros para qualquer notificação relativa a produtos que apresentem um interesse especial para esses países.

10 - Os Membros designarão uma única autoridade da administração central que será responsável pela aplicação, à escala nacional, das disposições relativas aos procedimentos de notificação, em conformidade com os n.os 5, 6, 7 e 8 do presente anexo.

Reservas gerais

11 - Nenhuma disposição do presente Acordo será interpretada como impondo:

a) A comunicação de pormenores ou de textos de projectos ou a publicação de textos numa língua diferente da do Membro, sob reserva das disposições do n.º 8 do presente anexo; ou

b) A divulgação, pelos Membros, de informações confidenciais que impeça a aplicação da legislação sanitária ou fitossanitária ou prejudique os interesses comerciais legítimos de empresas.

ANEXO C

PROCEDIMENTOS DE CONTROLO, INSPECÇÃO E HOMOLOGAÇÃO (ver nota 7)

1 - No que respeita a todos os procedimentos destinados a verificar e a assegurar o respeito das medidas sanitárias ou fitossanitárias, os Membros assegurarão que:

a) Esses procedimentos sejam iniciados e completados sem atraso injustificado e não sejam menos favoráveis para os produtos importados que para os produtos semelhantes de origem nacional;

b) A duração normal de cada procedimento seja publicada ou que a duração prevista seja comunicada ao requerente se este o solicitar; que, quando receber um pedido, o organismo competente verifique rapidamente se a documentação está completa e informe o requerente, de modo preciso e completo, de todas as lacunas; que o organismo competente comunique os resultados do procedimento ao requerente logo que possível e de um modo preciso e completo, a fim de que possam ser introduzidas correcções em caso de necessidade; que, mesmo que o pedido apresente lacunas, o organismo competente conduza o procedimento tão longe quanto possível, se o requerente o solicitar; que, caso o solicite, o requerente seja informado do avanço do procedimento, bem como das razões de eventuais atrasos;

c) Os pedidos de informação sejam limitados ao necessário para que os procedimentos de controlo, inspecção e homologação, incluindo a homologação de utilização de aditivos ou o estabelecimento de tolerâncias relativas à presença de contaminantes nos produtos alimentares, bebidas ou alimentos para animais, sejam adequados;

d) O carácter confidencial das informações relativas aos produtos importados, as quais podem resultar do controlo, inspecção e homologação ou ser fornecidas para o efeito, seja respeitado de um modo não menos favorável que no caso dos produtos de origem nacional e de forma que sejam protegidos os interesses comerciais legítimos;

e) Qualquer pedido de amostras de um produto, para efeitos de controlo, inspecção e homologação, seja limitado ao razoável e necessário;

f) As taxas eventualmente impostas para os procedimentos relativos aos produtos importados sejam equitativas relativamente às que seriam cobradas para produtos semelhantes de origem nacional ou originários de qualquer outro Membro e não sejam mais elevadas do que o custo efectivo do serviço;

g) Os critérios utilizados para a escolha da localização das instalações utilizadas para os procedimentos e a colheita das amostras sejam os mesmos para os produtos importados e para os produtos de origem nacional, de modo a reduzir ao mínimo o incómodo para os requerentes, importadores, exportadores ou seus agentes;

h) Cada vez que as especificações de um produto sejam alteradas após controlo e inspecção do mesmo à luz das regulamentações aplicáveis, o procedimento para o produto alterado seja limitado ao necessário para determinar se existe a segurança suficiente de que esse produto ainda satisfaz as regulamentações em causa; e

j) Existe um procedimento para examinar as queixas relativas à aplicação desses procedimentos e introduzir correcções no caso de uma queixa ser justificada.

Se um Membro importador aplicar um sistema de homologação da utilização de aditivos alimentares ou de estabelecimento de tolerâncias para os contaminantes nos produtos alimentares, bebidas ou alimentos para animais que proíba ou restrinja o acesso de produtos aos seus mercados internos com base na ausência de homologação, considerará a possibilidade de se basear numa norma internacional aplicável para permitir o acesso na pendência de uma determinação final.

2 - No caso de uma medida sanitária ou fitossanitária prever um controlo a nível da produção, o Membro em cujo território esta produção tem lugar fornecerá a assistência necessária para facilitar esse controlo e o trabalho das autoridades que o efectuem.

3 - Nenhuma disposição do presente Acordo impedirá os Membros de efectuarem uma inspecção razoável no seu próprio território.

(nota 7) Os procedimentos de controlo, inspecção e homologação incluem, nomeadamente, os procedimentos de amostragem, ensaio e certificação.

ACORDO SOBRE OS TÊXTEIS E O VESTUÁRIO

Os Membros:

Recordando que os Ministros acordaram, em Punta del Este, que «as negociações no domínio dos têxteis e do vestuário terão por objectivo a definição de modalidades que permitam finalmente integrar este sector no âmbito do GATT, com base em regras e disciplinas reforçadas do GATT, contribuindo assim igualmente para o objectivo de uma maior liberalização do comércio»;

Recordando também que, na Decisão do Comité das Negociações Comerciais, de Abril de 1989, foi acordado que o processo de integração deveria ter início após a conclusão das Negociações Comerciais Multilaterais do Uruguay Round e assumir um carácter progressivo;

Recordando ainda que foi acordado que deveria ser concedido um tratamento especial aos países membros menos desenvolvidos;

acordam no seguinte:

Artigo 1.º

1 - O presente Acordo estabelece as disposições a aplicar pelos Membros durante um período de transição para a integração do sector dos têxteis e do vestuário no âmbito do GATT de 1994.

2 - Os Membros acordam em utilizar as disposições previstas no n.º 18 do artigo 2.º e no n.º 6, alínea b), do artigo 6.º de um modo que permita um aumento significativo das possibilidades de acesso dos pequenos fornecedores e o desenvolvimento de oportunidades de mercado comercialmente significativas para os novos participantes no comércio dos têxteis e do vestuário (ver nota 1).

3 - Os Membros terão devidamente em conta a situação dos Membros que não tenham aceite os Protocolos que prorrogam o Acordo Relativo ao Comércio Internacional de Têxteis (designado por «AMF» no presente Acordo) desde 1986 e, na medida do possível, conceder-lhes-ão um tratamento especial no que respeita à aplicação das disposições do presente Acordo.

4 - Os Membros acordam em que, em consulta com os Membros exportadores produtores de algodão, os interesses específicos destes se devem reflectir na aplicação das disposições do presente Acordo.

5 - A fim de facilitar a integração do sector dos têxteis e do vestuário no âmbito do GATT de 1994, os Membros deverão prever um ajustamento industrial autónomo e contínuo, bem como uma concorrência crescente nos seus mercados.

6 - Salvo disposição em contrário do presente Acordo, as suas disposições não afectarão os direitos e as obrigações decorrentes do Acordo Que Cria a OMC dos Acordos Comerciais Multilaterais.

7 - Os produtos têxteis e do vestuário aos quais é aplicável o presente Acordo figuram no Anexo.

(nota 1) Na medida do possível, poderão igualmente beneficiar desta disposição as exportações dos Membros que sejam países menos desenvolvidos.

Artigo 2.º

1 - Todas as restrições quantitativas previstas no âmbito de acordos bilaterais, aplicadas em conformidade com o artigo 4.º ou notificadas em conformidade com o disposto nos artigos 7.º ou 8.º do AMF, que estejam em vigor no dia anterior à entrada em vigor do Acordo OMC, devem, no prazo de 60 dias a contar da sua entrada em vigor, ser notificadas de um modo pormenorizado, incluindo os níveis de restrição, as taxas de aumento e as disposições em matéria de flexibilidade, pelos Membros que as apliquem ao Órgão de Supervisão dos Têxteis previsto no artigo 8.º (designado no presente Acordo por «OST»). Os Membros acordam em que, a partir da data da entrada em vigor do Acordo OMC, todas as restrições deste tipo aplicadas entre Partes Contratantes no GATT de 1947 no dia anterior à sua entrada em vigor, serão regidas pelas disposições do presente Acordo.

2 - O OST transmitirá estas notificações a todos os Membros para informação. Qualquer Membro pode, no prazo de 60 dias a contar da comunicação das notificações, transmitir ao OST quaisquer observações que considere adequadas relativamente a tais notificações. Tais observações serão comunicadas aos outros Membros para informação. O OST pode formular recomendações, conforme adequado, aos Membros em causa.

3 - No caso de o período de 12 meses previsto para a aplicação das restrições que devem ser notificadas em conformidade com o disposto no artigo 1.º não coincidir com o período de 12 meses imediatamente anterior à data da entrada em vigor do Acordo OMC, os Membros em causa deverão, por mútuo acordo, adoptar disposições destinadas a fazer coincidir o período de aplicação das restrições com o ano de aplicação do Acordo (ver nota 2) e a definir níveis de base teóricos para tais restrições tendo em vista a aplicação das disposições do presente artigo. Os Membros em questão, caso tal lhes seja solicitado, acordam em realizar consultas no mais curto prazo de tempo com o objectivo de chegar a tal acordo mútuo. Tais disposições deverão ter em conta, nomeadamente, a estrutura sazonal das expedições dos últimos anos. Os resultados dessas consultas devem ser notificados ao OST, que formulará as recomendações que considere adequadas aos Membros em causa.

(nota 2) Por «ano de aplicação do Acordo», entende-se um período de 12 meses a contar da data da entrada em vigor do Acordo OMC, bem como cada um dos períodos de 12 meses subsequentes.

4 - Considerar-se-á que as restrições notificadas em conformidade com o disposto no n.º 1 constituem a totalidade das restrições desse tipo aplicadas pelos respectivos Membros no dia anterior à entrada em vigor do Acordo OMC. Não serão introduzidas quaisquer novas restrições, quer relativamente a produtos, quer a Membros, excepto ao abrigo das disposições do presente Acordo ou das disposições pertinentes do GATT de 1994 (ver nota 3). As restrições que não tenham sido notificadas no prazo de 60 dias a contar da data da entrada em vigor do Acordo OMC serão imediatamente abolidas.

(nota 3) As disposições pertinentes do GATT de 1994 não incluem o artigo XIX no que se refere a produtos ainda não integrados no GATT de 1994, salvo disposição em contrário prevista no n.º 3 do Anexo.

5 - Qualquer medida unilateral tomada ao abrigo do artigo 3.º do AMF, antes da data da entrada em vigor do Acordo OMC, pode continuar em vigor durante o prazo nele especificado, desde que não exceda 12 meses e tenha sido examinada pelo Órgão de Vigilância dos Têxteis (designado por «OVT» no presente Acordo) instituído pelo AMF. No caso de o OVT não ter tido a possibilidade de examinar tal medida unilateral, a mesma será examinada pelo OST, em conformidade com as regras e os procedimentos que regem as medidas tomadas ao abrigo do artigo 3.º do AMF. Qualquer medida aplicada por força de um acordo ao abrigo do artigo 4.º do AMF antes da data da entrada em vigor do Acordo OMC que seja objecto de um litígio que o OVT não tenha tido a possibilidade de examinar será igualmente examinada pelo OST em conformidade com as regras e os procedimentos do AMF aplicáveis a esse tipo de exame.

6 - Na data da entrada em vigor do Acordo OMC, cada Membro integrará no âmbito do GATT de 1994 produtos que correspondam, pelo menos, a 16% do volume total das importações dos Membros em 1990 no que respeita aos produtos que constam do Anexo, por posições e categorias do SH. Os produtos a integrar devem pertencer a cada um dos seguintes grupos: tops e fios, tecidos, artigos têxteis confeccionados e artigos de vestuário.

7 - Os Membros em causa notificarão de modo pormenorizado todas as medidas a tomar por força do disposto no n.º 6, em conformidade com o seguinte:

a) Os Membros que mantenham restrições abrangidas pelo disposto no n.º 1 comprometem-se, não obstante a data da entrada em vigor do Acordo OMC, a notificar os tais pormenores ao Secretariado do GATT, o mais tardar na data fixada pela Decisão Ministerial de 15 de Abril de 1994. O Secretariado do GATT comunicará no mais curto prazo de tempo tais notificações aos outros participantes, para informação. Estas notificações serão colocadas à disposição do OST, quando este órgão for criado, para efeitos do disposto no n.º 21;

b) Os Membros que, ao abrigo do disposto no n.º 1 do artigo 6.º, conservem o direito de utilizar as disposições previstas no referido artigo notificarão os referidos pormenores ao OST, o mais tardar, num prazo de 60 dias a contar da data da entrada em vigor do Acordo OMC, ou, no caso dos Membros abrangidos pelo disposto no n.º 3 do artigo 1.º, o mais tardar, num prazo de 12 meses a contar da data da entrada em vigor do presente Acordo. O OST comunicará tais notificações, para informação, aos outros Membros e examiná-las-á em conformidade com o disposto no n.º 21.

8 - Os restantes produtos, isto é, os produtos não integrados no âmbito do GATT de 1994 em conformidade com o disposto no n.º 6, serão integrados, por posições ou categorias do SH, em três etapas, do seguinte modo:

a) No primeiro dia do 37.º mês a partir da entrada em vigor do Acordo OMC, produtos que correspondam, pelo menos, a 17% do volume total das importações dos Membros em 1990 no que respeita aos produtos que constam do Anexo. Os produtos a integrar pelos Membros devem pertencer a cada um dos seguintes quatro grupos: tops e fios, tecidos, artigos têxteis confeccionados e artigos de vestuário;

b) No primeiro dia do 85.º mês a partir da entrada em vigor do Acordo OMC, produtos que correspondam, pelo menos, a 18% do volume total das importações dos Membros em 1990 no que respeita aos produtos que constam do Anexo. Os produtos a integrar pelos Membros devem pertencer a cada um dos seguintes quatro grupos: tops e fios, tecidos, artigos têxteis confeccionados e artigos de vestuário;

c) No primeiro dia do 121.º mês a partir da entrada em vigor do Acordo OMC, o sector dos têxteis e do vestuário ficará integrado no âmbito do GATT de 1994, tendo todas as restrições aplicadas ao abrigo do presente Acordo sido eliminadas.

9 - Para efeitos do presente Acordo, considerar-se-á que os Membros que tenham notificado, em conformidade com o disposto no n.º 1 do artigo 6.º, a sua intenção de não conservarem o direito de utilização das disposições do artigo 6.º integraram os respectivos produtos têxteis e do vestuário no âmbito do GATT de 1994. Por conseguinte, esses Membros estarão dispensados do cumprimento do disposto nos n.os 6 a 8 e 11.

10 - Nenhuma disposição do presente Acordo obsta a que um Membro, que tenha apresentado um programa de integração em conformidade com o disposto nos n.os 6 ou 8, integre produtos no âmbito do GATT de 1994 mais cedo do que o previsto no referido programa. Contudo, tal integração de produtos produzirá efeitos no início de um ano de aplicação do Acordo, devendo os pormenores ser notificados ao OST, pelo menos com três meses de antecedência, a fim de serem comunicados a todos os Membros.

11 - Os respectivos programas de integração, em conformidade com o disposto no n.º 8, serão notificados pormenorizadamente ao OST, pelo menos, 12 meses antes da sua entrada em vigor e comunicados pelo OST a todos os Membros.

12 - Os níveis de base das restrições aplicadas aos restantes produtos, mencionados no n.º 8, serão os níveis de restrição referidos no n.º 1.

13 - Durante a etapa 1 do presente Acordo (a partir da data da entrada em vigor do Acordo OMC até ao 36.º mês da sua aplicação, inclusive), o nível de cada restrição aplicada por força de acordos bilaterais concluídos ao abrigo do AMF e em vigor durante o período de 12 meses anterior à data da entrada em vigor do Acordo OMC será aumentado anualmente, pelo menos proporcionalmente à taxa de aumento estabelecida para as respectivas restrições, majorada de 16%.

14 - Salvo decisão em contrário do Conselho do Comércio de Mercadorias ou do Órgão de Resolução de Litígios por força do disposto no n.º 12 do artigo 8.º, o nível de cada restrição restante será aumentado anualmente, durante as etapas seguintes do presente Acordo, pelo menos de acordo com o seguinte:

a) No que respeita à etapa 2 (do 37.º mês ao 84.º mês de aplicação do Acordo OMC, inclusive), a taxa de aumento aplicável às respectivas restrições durante a etapa 1, majorada de 25%;

b) No que respeita à etapa 3 (do 85.º mês ao 120.º mês de aplicação do Acordo OMC, inclusive) a taxa de aumento aplicável às respectivas restrições durante a etapa 2, majorada de 27%.

15 - Nenhuma disposição do presente Acordo obsta a que um Membro elimine qualquer restrição mantida ao abrigo do presente artigo, em vigor no início de um ano de aplicação do Acordo durante o período de transição, desde que o Membro exportador em causa e o OST sejam notificados, pelo menos, três antes de que a eliminação dessa restrição produza efeitos. O prazo para a notificação prévia poderá ser reduzido para 30 dias com o acordo do Membro objecto da restrição. O OST comunicará tais notificações a todos os Membros. Ao considerarem a eliminação de restrições em conformidade com o disposto no presente número, os Membros em causa devem ter em conta o tratamento concedido a exportações similares originárias de outros Membros.

16 - As disposições em matéria de flexibilidade, designadamente as possibilidades de transferência, o reporte e a utilização antecipada, aplicáveis a todas as restrições mantidas em conformidade com o disposto no presente artigo, serão as previstas nos acordos bilaterais concluídos ao abrigo do AMF para o período de 12 meses anterior à entrada em vigor do Acordo OMC. Não serão introduzidos nem mantidos quaisquer limites quantitativos à utilização combinada das possibilidades de transferência, do reporte ou da utilização antecipada.

17 - As disposições administrativas consideradas necessárias para a aplicação de qualquer disposição do presente artigo serão acordadas entre os Membros em questão. Tais disposições serão notificadas ao OST.

18 - No que respeita aos Membros cujas exportações, no dia anterior à entrada em vigor do Acordo OMC, sejam objecto de restrições que representem 1,2% ou menos do volume total das restrições aplicadas por um Membro importador em 31 de Dezembro de 1991 e que tenham sido notificadas por força do presente artigo, será estabelecida, aquando da entrada em vigor do Acordo OMC e durante a vigência do presente Acordo, uma melhoria significativa das condições de acesso das suas exportações, quer através da aplicação, com uma etapa de avanço, das taxas de aumento estabelecidas nos n.os 13 e 14, quer da introdução de alterações pelo menos equivalentes, decididas de mútuo acordo, no que respeita a uma diferente ponderação dos níveis de base, dos coeficientes de aumento e das disposições em matéria de flexibilidade. Tais melhorias devem ser notificadas ao OST.

19 - No caso de, durante a vigência do presente Acordo, um Membro introduzir, ao abrigo do artigo XIX do GATT de 1994, uma medida de salvaguarda em relação a um determinado produto, durante o período de um ano imediatamente posterior à integração desse produto no âmbito do GATT de 1994 em conformidade com o disposto no presente artigo, serão aplicáveis, sob reserva do disposto no n.º 20, as disposições do referido artigo XIX, tal como interpretadas pelo Acordo sobre as Medidas de Salvaguarda.

20 - No caso de tal medida ser aplicada através de medidas não pautais, o Membro importador em questão aplicá-la-á de acordo com o disposto no n.º 2, alínea a), do artigo XIII do GATT de 1994, a pedido de qualquer Membro exportador cujas exportações dos produtos em causa tenham sido objecto de restrições ao abrigo do presente Acordo em qualquer momento durante o período de um ano imediatamente anterior à introdução da medida de salvaguarda. O Membro exportador em questão administrará essa medida. O nível aplicável não reduzirá as exportações em causa para um nível inferior ao de um período representativo recente, que deverá geralmente corresponder à média das exportações do Membro em questão nos três últimos anos representativos em relação aos quais existam dados estatísticos disponíveis. Além disso, no caso de a medida de salvaguarda ser aplicada por um período superior a um ano, o nível aplicável será progressivamente liberalizado, a intervalos regulares, durante o período de aplicação. Nesses casos, o Membro exportador em questão não exercerá o direito de suspender concessões ou outras obrigações substancialmente equivalentes ao abrigo do GATT de 1994, tal como previsto no n.º 3, alínea a), do artigo XIX do GATT de 1994.

21 - O OST acompanhará a aplicação do presente Acordo. A pedido de qualquer Membro, examinará qualquer questão específica relativa à aplicação das disposições do presente artigo. O OST dirigirá recomendações ou conclusões adequadas, num prazo de 30 dias, ao Membro ou aos Membros em questão, após os ter convidado a participar nos seus trabalhos.

Artigo 3.º

1 - No prazo de 60 dias a contar da entrada em vigor do Acordo OMC, os Membros que apliquem restrições (ver nota 4) relativamente a produtos têxteis ou do vestuário (para além das restrições aplicadas ao abrigo do AMF e abrangidas pelo disposto no artigo 2.º), independentemente de serem compatíveis com o GATT de 1994, notificá-las-ão (a) pormenorizadamente ao OST ou (b) comunicar-lhe-ão as notificações pertinentes que tenham sido apresentadas a qualquer outro órgão da OMC. Sempre que adequado, as notificações deverão conter informações sobre a justificação das restrições no âmbito do GATT de 1994, incluindo as disposições do GATT de 1994 em que se baseiem.

(nota 4) Por restrições entende-se quaisquer restrições quantitativas unilaterais, acordos bilaterais ou quaisquer outras medidas de efeito similar.

2 - Os Membros que apliquem restrições abrangidas pelo disposto no n.º 1, com excepção das justificadas ao abrigo de uma disposição do GATT de 1994, devem:

a) Torná-las conformes ao GATT de 1994, no prazo de um ano a contar da data da entrada em vigor do Acordo OMC e notificar tal facto ao OST para sua informação; ou

b) Eliminá-las progressivamente de acordo com um programa a apresentar ao OST pelo Membro que aplica as restrições, o mais tardar, seis meses após a data da entrada em vigor do Acordo OMC. Este programa deverá prever a eliminação progressiva de todas as restrições durante um período não superior ao da vigência do presente Acordo. O OST pode formular recomendações ao Membro em questão relativamente a tal programa.

3 - Durante a vigência do presente Acordo, os Membros comunicarão ao OST, para sua informação, as notificações apresentadas a qualquer outro órgão da OMC respeitantes a qualquer nova restrição ou alteração das restrições existentes relativamente a produtos têxteis e do vestuário, que tenha sido adoptada ao abrigo de uma disposição do GATT de 1994, no prazo de 60 dias a contar da sua entrada em vigor.

4 - Os Membros terão a faculdade de efectuar notificações inversas ao OST, para sua informação, relativamente à justificação de uma restrição ao abrigo do GATT de 1994 ou a qualquer restrição que possa não ter sido notificada em conformidade com o disposto no presente artigo. Qualquer Membro pode dar início a uma acção relativa às notificações em causa ao abrigo das disposições ou dos procedimentos do GATT de 1994 pertinentes perante o órgão competente da OMC.

5 - O OST comunicará a todos os Membros as notificações apresentadas em conformidade com o disposto no presente artigo.

Artigo 4.º

1 - As restrições referidas no artigo 2.º, bem como as restrições aplicadas ao abrigo do artigo 6.º, serão administradas pelos Membros exportadores. Os Membros importadores não serão obrigados a aceitar expedições que excedam as restrições notificadas por força do artigo 2.º ou as que são aplicadas em conformidade com o disposto no artigo 6.º

2 - Os Membros acordam em que a introdução de alterações na aplicação ou na administração das restrições notificadas ou aplicadas ao abrigo do presente Acordo, designadamente a nível das práticas, das regras, dos procedimentos e da classificação por categorias dos produtos têxteis e de vestuário, incluindo as alterações relativas ao Sistema Harmonizado, não deverá perturbar o equilíbrio dos direitos e das obrigações entre os Membros em questão decorrentes do presente Acordo, afectar desfavoravelmente o acesso de que um Membro pode beneficiar, impedir a plena utilização desse acesso ou desorganizar o comércio abrangido pelo presente Acordo.

3 - Os Membros acordam em que, no caso de um produto que apenas constitua um dos elementos de uma restrição ser objecto de uma notificação tendo em vista a sua integração, em conformidade com o disposto no artigo 2.º, qualquer alteração do nível da restrição não deverá perturbar o equilíbrio dos direitos e das obrigações entre os Membros em questão decorrentes do presente Acordo.

4 - Contudo, os Membros acordam em que, quando as alterações referidas nos n.os 2 e 3 se revelarem necessárias, o Membro que as introduza deve informar o Membro ou os Membros afectados e, sempre que possível, proceder à realização de consultas com estes últimos antes da introdução de tais alterações, tendo em vista chegar a uma solução mutuamente aceitável quanto a um ajustamento adequado e equitativo. Além disso, os Membros acordam em que, no caso de não ser possível realizar consultas antes da introdução das alterações em questão, o Membro que proceda a tais alterações realizará consultas, a pedido do Membro afectado, se possível num prazo de 60 dias, com os Membros em questão, tendo em vista chegar a uma solução mutuamente aceitável quanto a ajustamentos adequados e equitativos. Caso não se chegue a uma solução mutuamente satisfatória, qualquer dos Membros em causa pode submeter a questão à apreciação do OST para que este formule recomendações em conformidade com o disposto no artigo 8.º Caso o OVT não tenha tido a possibilidade de examinar um litígio relativo a alterações introduzidas antes da entrada em vigor do Acordo OMC, o mesmo será examinado pelo OST, em conformidade com as regras e os procedimentos do AMF aplicáveis a tal exame.

Artigo 5.º

1 - Os Membros acordam em que a evasão através de reexpedição, desvio de rota, falsa declaração relativamente ao país ou ao local de origem ou falsificação de documentos oficiais contraria a aplicação do presente Acordo para a integração do sector têxtil e do vestuário no âmbito do GATT de 1994. Consequentemente, os Membros devem estabelecer as disposições legislativas e ou os procedimentos administrativos necessários para fazer face à evasão e para a combater. Os Membros acordam, além disso, em cooperar plenamente, de um modo compatível com as respectivas legislações e procedimentos nacionais, a fim de resolver os problemas resultantes da evasão.

2 - Se um Membro considerar que o presente Acordo está a ser objecto de evasão através de reexpedição, desvio de rota, falsa declaração relativamente ao país ou ao local de origem ou falsificação de documentos oficiais e que não estão a ser aplicadas medidas para fazer face e ou combater tal evasão, ou que as medidas aplicadas são inadequadas, deve iniciar consultas com o Membro ou os Membros em causa a fim de procurar uma solução mutuamente satisfatória. Tais consultas devem realizar-se sem demora, se possível, no prazo de 30 dias. Caso não se chegue a uma solução mutuamente satisfatória, qualquer dos Membros em causa pode submeter a questão ao OST para que este formule recomendações.

3 - Os Membros acordam em tomar as medidas necessárias, de um modo compatível com as suas legislações e procedimentos nacionais, para impedir, investigar e, se necessário, tomar medidas legislativas e ou administrativas contra práticas de evasão no respectivo território. Os Membros acordam em cooperar plenamente, de um modo compatível com as suas legislações e procedimentos nacionais, nos casos de evasão ou de alegada evasão do presente Acordo, a fim de estabelecer os factos pertinentes nos locais de importação, de exportação e, se for caso disso, de reexpedição. Fica acordado que tal cooperação, compatível com as suas legislações e procedimentos nacionais, incluirá: um inquérito sobre as práticas de evasão que aumentem as exportações objecto de restrição para o Membro que aplica tais restrições; a troca de correspondência e o intercâmbio de documentos, relatórios e outras informações pertinentes, na medida do possível; e facilidades para a realização de visitas a instalações e para o estabelecimento de contactos, mediante pedido e numa base caso a caso. Os Membros devem procurar esclarecer as circunstâncias desses casos de evasão, ou de alegada evasão, incluindo o papel desempenhado pelos exportadores ou pelos importadores em questão.

4 - Os Membros acordam em que quando, em consequência de um inquérito, existam elementos de prova suficientes da ocorrência de evasão (isto é, quando existam elementos de prova disponíveis relativamente ao país ou local de verdadeira origem e às circunstâncias da referida evasão), deverão ser tomadas medidas adequadas, conforme o necessário, para resolver o problema. Tais medidas podem incluir a recusa da introdução de mercadorias ou, no caso de estas já terem sido introduzidas, o ajustamento das quantidades imputadas em relação aos níveis de restrição, a fim de que reflictam o país ou local de verdadeira origem, tendo devidamente em conta as circunstâncias efectivas e a participação do verdadeiro país ou local de origem. Além disso, caso existam provas de participação dos territórios dos Membros através dos quais as mercadorias foram expedidas, tais medidas podem incluir a introdução de restrições relativamente a esses Membros. Tais medidas, juntamente com o seu calendário de aplicação e alcance, podem ser tomadas após a realização de consultas com o objectivo de se chegar a uma solução mutuamente satisfatória entre os Membros em causa, devendo ser notificadas, devidamente justificadas, ao OST. Os Membros em causa podem, através de consultas, chegar a acordo quanto a outras soluções. Tal acordo deve igualmente ser notificado ao OST, que pode formular as recomendações que considere adequadas aos Membros em causa. Caso não se chegue a uma solução mutuamente satisfatória, qualquer dos Membros em causa pode submeter a questão ao OST, para que este a examine sem demora e formule recomendações.

5 - Os Membros tomam nota de que alguns casos de evasão podem envolver expedições através de países ou de locais de trânsito sem que nesses locais de trânsito se verifiquem mudanças ou alterações das mercadorias de que são constituídas tais expedições. Os Membros tomam nota de que pode nem sempre ser possível exercer, nesses locais de trânsito, um controlo de tais expedições.

6 - Os Membros acordam em que são igualmente contrárias ao presente Acordo as falsas declarações quanto ao teor em fibras, às quantidades, à designação ou à classificação das mercadorias. Os Membros acordam em que quando existam provas de que foram prestadas falsas declarações com o objectivo de evasão do presente Acordo, devem ser tomadas as medidas adequadas contra os exportadores ou os importadores implicados, de um modo compatível com as suas legislações e procedimentos nacionais. Caso um Membro considere que o presente Acordo está a ser objecto de evasão através de uma falsa declaração e que não estão a ser tomadas medidas administrativas para fazer face e ou combater tal evasão, ou que as medidas tomadas são inadequadas, deve iniciar, no mais curto prazo de tempo possível, consultas com o Membro em causa, a fim de procurar uma solução mutuamente satisfatória. Caso não se chegue a uma tal solução, qualquer dos Membros em causa pode submeter a questão ao OST, para que este formule recomendações. A presente disposição não se destina a impedir que os Membros efectuem ajustamentos técnicos quando, por inadvertência, tenham sido cometidos erros nas declarações.

Artigo 6.º

1 - Os Membros reconhecem que, durante o período de transição, pode ser necessário aplicar um mecanismo específico de salvaguarda transitória (designado no presente Acordo por «mecanismo de salvaguarda transitória»).O mecanismo de salvaguarda transitória pode ser aplicado por qualquer Membro aos produtos abrangidos pelo Anexo, com excepção dos produtos integrados no âmbito do GATT de 1994 por força do disposto no artigo 2.º Os Membros que não apliquem restrições abrangidos pelo disposto no artigo 2.º devem, no prazo de 60 dias a contar da data da entrada em vigor do Acordo OMC, notificar ao OST que pretendem ou não conservar o direito de utilizar as disposições do presente artigo. Os Membros que não tenham aceitado os Protocolos que prorrogam o AMF desde 1986 devem efectuar a referida notificação no prazo de seis meses a contar da data da entrada em vigor do Acordo OMC. O mecanismo de salvaguarda transitória deve ser aplicado com a maior moderação possível e de um modo compatível com as disposições do presente artigo e com a realização efectiva do processo de integração previsto no presente Acordo.

2 - Podem ser tomadas medidas de salvaguarda ao abrigo do disposto no presente artigo quando, com base na determinação de um Membro (ver nota 5), se demonstrar que as importações de um determinado produto no seu território aumentaram em tal quantidade que causam ou ameaçam causar um grave prejuízo ao sector da produção nacional de produtos similares e ou que com eles se encontram em concorrência directa. Esse grave prejuízo, ou ameaça de prejuízo, deve manifestamente ser provocado pelo aumento da quantidade das importações do produto em causa e não por quaisquer outros factores, tais como mudanças tecnológicas ou das preferências dos consumidores.

(nota 5) Uma união aduaneira pode aplicar uma medida de salvaguarda enquanto entidade única ou em nome de um Estado membro. Quando uma união aduaneira aplicar uma medida de salvaguarda, enquanto entidade única, todos os requisitos para a determinação da existência de um prejuízo grave ou de uma ameaça real de prejuízo grave ao abrigo do presente Acordo deverão basear-se nas condições existentes no conjunto da união aduaneira. Quando uma medida de salvaguarda for aplicada em nome de um Estado membro, todos os requisitos para a determinação da existência de um prejuízo grave ou de uma ameaça real de prejuízo grave deverão basear-se nas condições existentes nesse Estado membro, devendo a medida limitar-se a este Estado.

3 - Ao determinar a existência de um grave prejuízo ou de ameaça real de grave prejuízo, tal como referido no n.º 2, o Membro deve examinar o efeito dessas importações na situação do sector de produção em questão, tal como reflectido nas alterações das variáveis económicas pertinentes, nomeadamente a produção, a produtividade, a utilização da capacidade, as existências, a parte de mercado, as exportações, os salários, o emprego, os preços internos, os lucros e o investimento. Nenhum destes factores, isoladamente considerado ou combinado com outros factores, pode constituir necessariamente uma base de apreciação determinante.

4 - Qualquer medida a que se recorra em conformidade com o disposto no presente artigo será aplicada numa base Membro a Membro. O Membro ou Membros aos quais seja imputado um grave prejuízo, ou ameaça real de grave prejuízo, tal como referido nos n.os 2 e 3, serão identificados com base num aumento súbito e considerável, efectivo ou iminente (ver nota 6), das importações do referido Membro ou Membros, individualmente considerados, e com base no nível das importações em comparação com as importações provenientes de outras fontes, a parte de mercado e os preços de importação e internos num estádio comparável da transacção comercial. Nenhum destes factores, isoladamente considerado ou combinado com outros factores, pode constituir necessariamente uma base de apreciação determinante. Tais medidas de salvaguarda não devem ser aplicadas às exportações de um Membro cujas exportações do produto em questão já sejam objecto de restrições por força do presente Acordo.

(nota 6) O aumento iminente deve ser mensurável, não podendo a sua existência ser determinada com base em alegações, conjecturas ou meras possibilidades decorrentes, por exemplo, da capacidade de produção existente nos Membros exportadores.

5 - O período de vigência de uma determinação de prejuízo grave ou de ameaça real de prejuízo grave para efeitos do recurso a medidas de salvaguarda não deve exceder 90 dias a contar da data da notificação inicial, tal como previsto no n.º 7.

6 - Na aplicação do mecanismo de salvaguarda transitória, devem ser especialmente tidos em conta os interesses dos Membros exportadores, de acordo com o seguinte:

a) Aos países menos desenvolvidos Membros será concedido um tratamento consideravelmente mais favorável, de preferência em todos os seus elementos, mas, pelo menos, em termos globais, do que o reservado aos outros grupos referidos no presente número;

b) Aos Membros cujo volume total das exportações de têxteis e de vestuário não seja importante em comparação com o volume total das exportações de outros Membros e que representem apenas uma percentagem reduzida das importações totais do referido produto no Membro importador será concedido um tratamento diferenciado e mais favorável no que se refere à fixação das condições de carácter económico previstas nos n.os 8, 13 e 14. Em relação a esses fornecedores, ter-se-á devidamente em conta, em conformidade com o disposto nos n.os 2 e 3 do artigo 1.º, as possibilidades futuras de desenvolvimento do seu comércio e a necessidade de permitir importações em quantidades comerciais provenientes do seu território;

c) No que se refere aos produtos de lã provenientes de países em desenvolvimento Membros que sejam produtores de lã, cuja economia e comércio de têxteis e de vestuário estejam quase exclusivamente dependentes do sector da lã e cujo volume de comércio de têxteis e de vestuário nos mercados dos Membros importadores seja comparativamente reduzido, será conferida especial atenção às necessidades de exportação desses Membros aquando da determinação dos níveis dos contingentes, das taxas de aumento e das margens de flexibilidade;

d) Será concedido um tratamento mais favorável às reimportações de produtos têxteis e de vestuário efectuadas por um Membro, que os tenha exportado para outro Membro a fim de serem transformados e posteriormente reimportados, nos termos definidos pela legislação e práticas do Membro importador, sob reserva de procedimentos de controlo e de certificação adequados sempre que esses produtos sejam importados de um Membro para o qual este tipo de comércio represente uma percentagem significativa das suas exportações totais de têxteis e de vestuário.

7 - O Membro que pretenda tomar uma medida de salvaguarda deve procurar realizar consultas com o Membro ou os Membros que por ela sejam afectados. O pedido de realização de consultas deve ser acompanhado de informações factuais, precisas e pertinentes, o mais actualizadas possível, em especial no que respeita: a) aos factores, referidos no n.º 3, em que o Membro que recorre à medida baseou a sua determinação de existência de um grave prejuízo ou de ameaça real de grave prejuízo; e b) aos factores, referidos no n.º 4, com base nos quais o Membro pretende tomar a medida de salvaguarda em relação ao Membro ou aos Membros em causa. No que se refere aos pedidos efectuados ao abrigo do presente número, as informações devem respeitar, o mais estreitamente possível, a segmentos da produção identificáveis e ao período de referência previsto no n.º 8. O Membro que recorra à medida deve indicar igualmente o nível específico a que se propõe restringir as importações do produto em questão provenientes do Membro ou dos Membros em causa; este nível não será inferior ao referido no n.º 8. O Membro que solicite a realização de consultas deve simultaneamente comunicar ao Presidente do OST o pedido de realização de consultas, incluindo todos os dados factuais pertinentes mencionados nos n.os 3 e 4, juntamente com o nível de restrição proposto. O Presidente informará os membros do OST do pedido de realização de consultas, indicando qual o Membro requerente, o produto em questão e o Membro que recebeu o pedido. O Membro ou Membros em causa devem responder no mais curto prazo de tempo a este pedido, devendo as consultas realizar-se sem demora e estar concluídas num prazo de 60 dias a contar da data de recepção do pedido.

8 - Se, no decurso das consultas, existir um entendimento mútuo de que a situação exige uma restrição das exportações do produto em questão do Membro ou dos Membros em causa, o nível dessa restrição será fixado a um nível inferior ao nível efectivo das exportações ou importações do Membro em causa durante o período de 12 meses que antecedeu os dois meses anteriores àquele em que o pedido de realização de consultas foi recebido.

9 - Os pormenores da medida de restrição acordada devem ser comunicados ao OST num prazo de 60 dias a contar da data de conclusão do acordo. O OST determinará se o acordo é justificado em conformidade com o disposto no presente artigo. Para estabelecer essa determinação, devem ser colocados à disposição do OST os dados factuais referidos no n.º 7 e comunicados ao Presidente, bem como quaisquer outras informações pertinentes facultadas pelos Membros em causa. O OST pode formular as recomendações que considere adequadas aos Membros em causa.

10 - No entanto, se após o termo do prazo de 60 dias a contar da data de recepção do pedido de realização de consultas, os Membros não tiverem chegado a acordo, o Membro que pretenda tomar medidas de salvaguarda pode aplicar a restrição, em função da data de importação ou de exportação, em conformidade com o disposto no presente Acordo, dentro dos 30 dias seguintes ao prazo de 60 dias previsto para a realização de consultas, e apresentar a questão ao OST. Qualquer dos Membros tem a faculdade de apresentar a questão ao OST antes do termo do prazo de 60 dias. Em qualquer dos casos, o OST procederá sem demora ao exame da questão, incluindo da determinação da existência de grave prejuízo ou de ameaça real de grave prejuízo e das suas causas, e formulará as recomendações adequadas aos Membros em causa, no prazo de 30 dias. Para proceder a tal exame, o OST disporá dos dados factuais, referidos no n.º 7, comunicados ao Presidente do OST, bem como de quaisquer outras informações pertinentes fornecidas pelos Membros em causa.

11 - Em circunstâncias extremamente críticas e excepcionais, em que um atraso poderia causar um prejuízo difícil de reparar, podem ser tomadas provisoriamente as medidas previstas no n.º 10, na condição de o pedido de realização de consultas e a notificação ao OST serem efectuados no prazo máximo de cinco dias úteis a contar da sua adopção. Caso as consultas não conduzam a um acordo, o OST deve ser notificado aquando da conclusão das mesmas e, em qualquer caso, o mais tardar num prazo de 60 dias a contar da data de aplicação das medidas. O OST deve proceder rapidamente a um exame da questão e formular as recomendações adequadas aos Membros em causa, num prazo de 30 dias. Caso as consultas conduzam a um acordo, os Membros notificá-lo-ão ao OST após conclusão das mesmas e, em qualquer caso, o mais tardar num prazo de 90 dias a contar da data de aplicação das medidas. O OST pode dirigir aos Membros em causa as recomendações que considere adequadas.

12 - Um Membro pode manter em vigor as medidas aplicadas em conformidade com o disposto no presente artigo: a) durante um período máximo de três anos, sem prorrogação; ou b) até que o produto esteja integrado no âmbito do GATT de 1994, caso tal ocorra mais cedo.

13 - Caso a medida de restrição permaneça em vigor por um período superior a um ano, o nível para os anos subsequentes será o especificado para o primeiro ano, majorado de uma taxa de aumento de, pelo menos, 6% por ano, salvo se se demonstrar ao OST que é justificada a aplicação de outra taxa. O nível de restrição aplicável ao produto em causa pode ser excedido, em qualquer dos dois anos subsequentes, através da utilização antecipada e ou do reporte, em 10%, não devendo representar mais de 5%. Não serão fixados limites quantitativos à utilização combinada das possibilidades de reporte, de utilização antecipada e do disposto no n.º 14.

14 - Quando, ao abrigo do disposto no presente artigo, um Membro submeta a restrição a mais de um produto proveniente de outro Membro, o nível da restrição acordado, em conformidade com o disposto no presente artigo, para cada um dos produtos considerados pode ser excedido em 7%, desde que o total das exportações objecto de restrição não exceda o total dos níveis aplicáveis a todos os produtos objecto de restrição ao abrigo do presente artigo, com base em unidades comuns acordadas. Sempre que os períodos de aplicação das restrições aplicáveis aos produtos em questão não coincidam entre si, a presente disposição será aplicada proporcionalmente a qualquer período em que haja sobreposição.

15 - No caso de uma medida de salvaguarda ser aplicada, ao abrigo do presente artigo, a um produto já objecto de restrição no âmbito do AMF em vigor durante o período de 12 meses anterior à entrada em vigor do Acordo OMC ou em conformidade com o disposto nos artigos 2.º ou 6.º, o nível da nova restrição será o definido no n.º 8, a menos que a nova restrição entre em vigor no prazo de um ano a contar:

a) Da data da notificação referida no n.º 15 do artigo 2.º para a eliminação de uma restrição anterior; ou

b) Da data de supressão da anterior restrição introduzida em conformidade com o disposto no presente artigo ou no AMF;

nesse caso, o nível não deve ser inferior ao mais elevado dos dois níveis seguintes: i) o nível de restrição fixado para o último período de 12 meses durante o qual o produto foi objecto de restrição; ou ii) o nível de restrição previsto no n.º 8.

16 - Quando um Membro que não aplique uma restrição ao abrigo do disposto no artigo 2.º decida aplicar uma restrição em conformidade com o disposto no presente artigo, adoptará disposições adequadas que: a) tenham plenamente em conta determinados factores, tais como a classificação pautal estabelecida e as unidades quantitativas baseadas nas práticas comerciais normais em transacções de exportação e de importação, quer no que respeita à composição em fibras, quer em termos de concorrência relativamente ao mesmo segmento do seu mercado interno; e b) evitem uma categorização excessiva. O pedido de realização de consultas referido nos n.os 7 ou 11 deve conter informações completas relativamente a tais disposições.

Artigo 7.º

1 - No âmbito do processo de integração e tendo em conta os compromissos específicos assumidos pelos Membros em consequência do Uruguay Round, todos os Membros tomarão as medidas necessárias para darem cumprimento às regras e disciplinas do GATT de 1994, afim de:

a) Melhorar o acesso aos mercados para os produtos têxteis e de vestuário, através da adopção de medidas, tais como a redução e a consolidação dos direitos pautais, a redução ou a eliminação dos obstáculos não pautais e a simplificação das formalidades aduaneiras, administrativas e de concessão de licenças;

b) Assegurar a aplicação das políticas relacionadas com a introdução de condições comerciais justas e equitativas para o sector dos têxteis e do vestuário, em domínios como as regras e procedimentos em matéria de dumping e de luta contra o dumping, as subvenções e as medidas de compensação e a protecção dos direitos de propriedade intelectual; e

c) Evitar uma discriminação em relação às importações do sector dos têxteis e do vestuário aquando da adopção de medidas por razões de política comercial geral.

Tais medidas serão adoptadas sem prejuízo dos direitos e das obrigações dos Membros resultantes do GATT de 1994.

2 - Os Membros notificarão ao OST as medidas referidas no n.º 1 que tenham incidência na aplicação do presente Acordo. No caso de essas medidas terem sido notificadas a outros órgãos da OMC, será suficiente um resumo, que faça referência à notificação inicial, para cumprir os requisitos do presente número. Os Membros terão a faculdade de efectuar notificações inversas ao OST.

3 - No caso de um Membro considerar que outro Membro não tomou as medidas referidas no n.º 1 e que o equilíbrio entre os direitos e as obrigações decorrentes do presente Acordo foi rompido, poderá apresentar a questão aos órgãos competentes da OMC e informar o OST. Quaisquer verificações ou conclusões posteriormente formuladas pelos órgãos da OMC em causa constarão de um relatório completo do OST.

Artigo 8.º

1 - É instituído o Órgão de Supervisão dos Têxteis («OST»), encarregado de supervisionar a aplicação do presente Acordo, de examinar todas as medidas tomadas ao abrigo do presente Acordo, bem como a sua conformidade com este último, e de tomar as medidas que expressamente lhe incumbem por força do presente Acordo. O OST será constituído por um Presidente e por 10 membros. A sua composição será equilibrada e largamente representativa dos Membros e será prevista a rotatividade dos seus membros a intervalos adequados. Os membros serão nomeados para integrar o OST por Membros designados pelo Conselho do Comércio das Mercadorias, desempenhando as suas funções a título pessoal.

2 - O OST estabelecerá os seus próprios procedimentos de trabalho. Fica, no entanto, entendido que o consenso no âmbito do OST não exigirá o acordo ou a aprovação dos membros que tenham sido nomeados por Membros em causa numa questão por resolver e ainda a ser examinada pelo OST.

3 - O OST será considerado um órgão permanente e reunir-se-á sempre que necessário para desempenhar as funções que lhe incumbem por força do presente Acordo. O OST basear-se-á nas notificações e nas informações comunicadas pelos Membros em conformidade com os artigos pertinentes do presente Acordo, completadas com informações adicionais ou precisões necessárias que os Membros lhe poderão comunicar ou que o OST decida solicitar-lhes. Pode, além disso, basear-se em notificações ou em relatórios de outros órgãos da OMC ou de qualquer outra fonte que considere adequada.

4 - Os Membros devem facultar mutuamente oportunidades adequadas para a realização de consultas sobre quaisquer questões que afectem o funcionamento do presente Acordo.

5 - Caso não se chegue a uma solução mutuamente acordada no âmbito das consultas bilaterais previstas no presente Acordo, o OST, a pedido de qualquer Membro e após ter aprofundadamente examinado a questão, no mais curto prazo de tempo formulará recomendações aos Membros em causa.

6 - A pedido de qualquer Membro, o OST examinará no mais curto prazo de tempo qualquer questão específica que esse Membro considere prejudicial para os seus interesses no âmbito do presente Acordo, quando as consultas realizadas entre o OST e o Membro ou Membros em causa não tenham conduzido a uma solução mutuamente satisfatória. Em relação a tais questões, o OST pode formular as observações que considere adequadas aos Membros em causa, bem como para efeitos do exame previsto no n.º 11.

7 - Antes de formular as suas recomendações ou observações, o OST solicitará a participação dos Membros que podem ser directamente afectados pela questão objecto de exame.

8 - Sempre que o OST tenha de formular recomendações ou conclusões, fá-lo-á de preferência num prazo de 30 dias, a menos que o presente Acordo preveja um outro prazo. Todas as recomendações ou conclusões serão comunicadas aos Membros directamente em causa. Além disso, serão igualmente comunicadas ao Conselho do Comércio de Mercadorias para informação.

9 - Os Membros esforçar-se-ão por acatar na íntegra as recomendações formuladas pelo OST, que exercerá uma vigilância adequada da respectiva aplicação.

10 - Se um Membro se considerar incapaz de cumprir as recomendações do OST, expor-lhe-á as suas razões, o mais tardar, um mês após a recepção das recomendações. Após ter examinado aprofundadamente as razões apresentadas, o OST emitirá imediatamente quaisquer outras recomendações que considere adequadas. Se, após essas novas recomendações, a questão continuar por resolver, qualquer dos Membros pode submeter a questão ao Órgão de Resolução de Litígios, invocando o n.º 2 do artigo XXIII do GATT de 1994 e as disposições relevantes do Memorando de Entendimento sobre Resolução de Litígios.

11 - Para supervisionar a aplicação do presente Acordo, o Conselho do Comércio de Mercadorias efectuará um exame geral antes do final de cada etapa do processo de integração. Para facilitar esse exame, o OST transmitirá ao Conselho do Comércio de Mercadorias, pelo menos cinco meses antes do final de cada etapa, um relatório completo sobre a aplicação do presente Acordo durante a etapa objecto de exame, em especial no concernente a questões respeitantes ao processo de integração e à aplicação do mecanismo de salvaguarda transitória e relacionadas com a aplicação das regras e disciplinas do GATT de 1994, tal como definidas nos artigos 2.º, 3.º, 6.º e 7.º, respectivamente. O relatório completo do OST pode incluir qualquer recomendação que este considere adequado dirigir ao Conselho do Comércio das Mercadorias.

12 - À luz do seu exame, o Conselho do Comércio das Mercadorias tomará, por consenso, as decisões que considere adequadas para assegurar que o equilíbrio dos direitos e obrigações consagrado no presente Acordo não seja comprometido. Para a resolução de eventuais litígios no que respeita às questões referidas no artigo 7.º, o Órgão de Resolução de Litígios pode autorizar, sem prejuízo da data final citada no artigo 9.º, um ajustamento do n.º 14 do artigo 2.º, para a etapa seguinte ao exame, relativamente a qualquer Membro em relação ao qual se tenha verificado que não cumpre as obrigações decorrentes do presente Acordo.

Artigo 9.º

O presente Acordo, bem como todas as restrições por ele abrangidas, caduca no primeiro dia do 121.º mês após a entrada em vigor do Acordo OMC, data em que o sector dos têxteis e do vestuário estará plenamente integrado no âmbito do GATT de 1994. O presente Acordo não será prorrogado.

ANEXO

LISTA DOS PRODUTOS ABRANGIDOS PELO PRESENTE ACORDO

1 - O presente anexo contém uma lista dos produtos têxteis e de vestuário definidos pelos respectivos códigos de seis dígitos do Sistema Harmonizado de Designação e de Codificação das Mercadorias (SH).

2 - As medidas tomadas ao abrigo das disposições de salvaguarda previstas no artigo 6.º serão aplicadas a produtos têxteis e de vestuário específicos e não com base nos códigos do SH per se.

3 - As medidas tomadas ao abrigo das disposições de salvaguarda previstas no artigo 6.º do presente Acordo não serão aplicáveis:

a) Às exportações, efectuadas por países em desenvolvimento Membros, de tecidos de fabrico artesanal obtidos em tear manual ou de produtos de fabrico artesanal feitos à mão com esses tecidos, nem às exportações de produtos têxteis e de vestuário artesanais próprios do folclore tradicional, desde que tais produtos sejam objecto de um certificado adequado conforme às disposições adoptadas entre os Membros em causa;

b) Aos produtos têxteis historicamente comercializados que, antes de 1982, eram objecto de comércio internacional em quantidades comercialmente significativas, tais como sacos de quaisquer dimensões, bases de tapetes, cordas, sacos e malas de viagem, esteiras, tapetes e alcatifas geralmente fabricados a partir de fibras, tais como a juta, o cairo, o sisal, a abacá, o maguei e o henequem;

c) Aos produtos de seda pura.

Em relação a tais produtos serão aplicáveis as disposições do artigo XIX do GATT de 1994, tal como interpretadas pelo Acordo sobre as Medidas de Salvaguarda.

Produtos da Secção XI (Matérias têxteis e suas obras) da Nomenclatura do Sistema Harmonizado de Designação e Codificação de Mercadorias (SH).

(ver documento original)

Produtos têxteis e do vestuário dos capítulos 30-49, 64-96

(ver documento original)

ACORDO SOBRE OS OBSTÁCULOS TÉCNICOS AO COMÉRCIO

Os Membros:

Tendo em conta as negociações comerciais multilaterais do Uruguay Round;

Desejando promover a realização dos objectivos do GATT de 1994;

Reconhecendo que os sistemas internacionais de normalização e de avaliação da conformidade podem prestar um contributo importante nesta matéria, aumentando a eficácia da produção e facilitando o comércio internacional;

Desejando, por conseguinte, incentivar o desenvolvimento dos sistemas internacionais de normalização e de avaliação da conformidade;

Desejando, no entanto, garantir que os regulamentos técnicos e normas, incluindo os requisitos relativos à embalagem, marcação e rotulagem, bem como os procedimentos de avaliação da conformidade com os regulamentos técnicos e normas, não criem obstáculos desnecessários ao comércio internacional;

Reconhecendo que nenhum país pode ser impedido de adoptar, aos níveis que considere adequados, as medidas necessárias para garantir a qualidade das suas exportações ou para a protecção da saúde e da vida humana e animal, para a conservação dos vegetais, para a protecção do ambiente ou para evitar práticas que induzam em erro, desde que tais medidas não sejam aplicadas de modo a constituir uma discriminação arbitrária ou injustificável entre países onde existam condições idênticas, ou uma restrição dissimulada ao comércio internacional, e que estejam, além disso, em conformidade com as disposições do presente Acordo;

Reconhecendo que nenhum país pode ser impedido de adoptar as medidas necessárias para a protecção dos interesses essenciais da sua segurança;

Reconhecendo o contributo que a normalização internacional pode prestar à transferência de tecnologia dos países desenvolvidos para os países em desenvolvimento;

Reconhecendo que os países em desenvolvimento podem encontrar dificuldades especiais na elaboração e aplicação de regulamentos técnicos, de normas e de procedimentos de avaliação da conformidade com regulamentos técnicos e normas, e desejando assisti-los nos seus esforços nesta matéria;

acordam no seguinte:

Artigo 1.º

Disposições gerais

1.1 - Os termos gerais relativos à normalização e aos procedimentos de avaliação da conformidade terão, normalmente, o sentido que lhes é atribuído pelas definições adoptadas no sistema das Nações Unidas e pelos organismos internacionais de normalização, atendendo ao seu contexto e tendo em conta o objecto e a finalidade do presente Acordo.

1.2 - No entanto, para efeitos do presente Acordo, é aplicável a acepção dos termos tal como definidos no Anexo 1.

1.3 - Todos os produtos, incluindo os produtos industriais e os produtos agrícolas, ficam sujeitos às disposições do presente Acordo.

1.4 - As especificações em matéria de aquisição elaboradas por organismos públicos para atender às necessidades de produção ou de consumo de organismos públicos não estão sujeitas às disposições do presente Acordo, mas são abrangidas pelo Acordo sobre Contratos Públicos, em conformidade com o seu âmbito de aplicação.

1.5 - As disposições do presente Acordo não são aplicáveis às medidas sanitárias e fitossanitárias tal como definidas no Anexo A do Acordo sobre a Aplicação de Medidas Sanitárias e Fitossanitárias.

1.6 - Todas as referências feitas no presente Acordo aos regulamentos técnicos, normas e procedimentos de avaliação de conformidade serão interpretadas como incluindo as alterações que neles vierem a ser introduzidas, bem como os aditamentos às suas regras ou aos produtos por eles abrangidos, com excepção das alterações ou aditamentos de menor importância.

Regulamentos técnicos e normas

Artigo 2.º

Elaboração, adopção e aplicação de regulamentos técnicos pela administração central

No que se refere à administração central:

2.1 - Os Membros assegurarão que, em matéria de regulamentos técnicos, seja concedido aos produtos importados do território de qualquer Membro um tratamento não menos favorável do que o tratamento concedido aos produtos similares de origem nacional e aos produtos similares originários de qualquer outro país.

2.2 - Os Membros assegurarão que os regulamentos técnicos não sejam elaborados, adoptados ou aplicados na perspectiva ou com o efeito de criar obstáculos desnecessários ao comércio internacional. Para esse efeito, os regulamentos técnicos não devem conter disposições mais restritivas para o comércio do que o necessário para satisfazer objectivos legítimos, tendo em conta os riscos que adviriam da não realização desses objectivos. Esses objectivos legítimos são, entre outros, os imperativos de segurança nacional, a prevenção de práticas susceptíveis de induzir em erro, a protecção da saúde ou da segurança das pessoas, da vida ou da saúde dos animais, a conservação dos vegetais, ou a protecção do ambiente. Os elementos a ter em conta na avaliação desses riscos incluem, entre outros, as informações científicas e técnicas disponíveis, a tecnologia de processamento respectiva ou as utilizações finais previstas para os produtos.

2.3 - Os regulamentos técnicos não devem ser mantidos em vigor se as circunstâncias ou os objectivos que estiveram na base da sua adopção deixarem de existir, ou se as novas circunstâncias ou os novos objectivos puderem ser abordados de um modo menos restritivo para o comércio.

2.4 - Quando forem necessários regulamentos técnicos ou normas e existirem normas internacionais pendentes ou estiverem em fase final de elaboração, os Membros utilizarão essas normas internacionais ou os seus elementos pertinentes como base dos seus regulamentos técnicos, excepto nos casos em que essas normas internacionais ou os seus elementos pertinentes forem inadequados ou ineficazes para atingir os objectivos legítimos visados, devido, nomeadamente, a factores climáticos ou geográficos fundamentais ou a problemas tecnológicos fundamentais.

2.5 - Ao elaborar, adoptar ou aplicar um regulamento técnico susceptível de ter um efeito significativo para o comércio de outros Membros, um Membro fornecerá, sempre que lhe seja solicitado por um outro Membro, a justificação desse regulamento técnico nos termos do disposto nos n.os 2 a 4. Sempre que um regulamento técnico seja elaborado, adoptado ou aplicado tendo em vista um dos objectivos legítimos explicitamente referidos no n.º 2, e que esteja em conformidade com as normas internacionais pertinentes, presumir-se-á - sendo esta presunção refutável - que tal regulamento não cria obstáculos desnecessários ao comércio internacional.

2.6 - A fim de harmonizar numa base o mais ampla possível os seus regulamentos técnicos, os Membros participarão plenamente, nos limites dos seus recursos, na elaboração, pelos organismos internacionais de normalização competentes, de normas internacionais para os produtos para os quais tenham adoptado ou prevejam adoptar regulamentos técnicos.

2.7 - Os Membros considerarão favoravelmente a possibilidade de reconhecer como equivalentes os regulamentos técnicos de outros Membros, mesmo se tais regulamentos forem diferentes dos seus, desde que tenham a certeza de que esses regulamentos satisfazem os objectivos dos seus próprios regulamentos.

2.8 - Sempre que seja adequado, os Membros elaborarão regulamentos técnicos que tenham por base requisitos de produtos definidos em termos de desempenho funcional e não com base em características de concepção ou descritivas.

2.9 - Sempre que não exista uma norma internacional pertinente ou que o conteúdo técnico de um projecto de regulamento técnico não esteja em conformidade com o conteúdo técnico das normas internacionais pertinentes, e se o regulamento técnico puder ter um efeito significativo no comércio de outros Membros, os Membros:

2.9.1 - Publicarão, com antecedência suficiente para que as partes interessadas de outros Membros dele tomem conhecimento, um aviso segundo o qual projectam adoptar um determinado regulamento técnico;

2.9.2 - Notificarão aos outros Membros, através do Secretariado, os produtos que serão abrangidos pelo projecto de regulamento técnico, indicando resumidamente o seu objectivo e fundamento. Tais notificações devem ser efectuadas com antecedência suficiente para que possam ainda ser introduzidas alterações ou para que as observações possam ser tomadas em consideração;

2.9.3 - Fornecerão, quando solicitado, aos demais Membros, pormenores ou cópias do projecto de regulamento técnico e, sempre que possível, identificarão os elementos que divirjam, em substância, das normas internacionais pertinentes;

2.9.4 - Concederão aos outros Membros, sem discriminação, um prazo razoável para que apresentem as suas observações por escrito, discutam essas observações, se tal lhes for pedido, e tomem em consideração essas observações escritas e os resultados dessas discussões.

2.10 - Nas condições previstas na parte introdutória do ponto 9, sempre que para um Membro surjam ou haja o risco de surgir problemas de segurança, saúde, protecção do ambiente ou segurança nacional, esse Membro pode omitir, conforme julgar necessário, algum ou alguns dos trâmites enunciados no ponto 9, desde que esse Membro, aquando da adopção de um regulamento técnico:

2.10.1 - Notifique imediatamente aos demais Membros, através do Secretariado, o regulamento técnico em causa e os produtos abrangidos, indicando resumidamente o objectivo e o fundamento desse regulamento técnico, incluindo a natureza dos problemas urgentes;

2.10.2 - Quando lhe for solicitado, faculte aos outros Membros cópias do regulamento técnico;

2.10.3 - Conceda aos outros Membros, sem discriminação, a possibilidade de apresentarem as suas observações por escrito, discuta essas observações se tal lhe for pedido e tome em consideração essas observações escritas e os resultados das discussões.

2.11 - Os Membros garantirão que todos os regulamentos técnicos adoptados sejam publicados no mais curto prazo de tempo ou divulgados por outros meios, de forma a permitir que as partes interessadas de outros Membros deles tomem conhecimento.

2.12 - Salvo nas circunstâncias de urgência previstas no n.º 10, os Membros concederão um prazo razoável entre a publicação de regulamentos técnicos e a respectiva entrada em vigor, a fim de que os produtos estabelecidos nos Membros exportadores, em especial nos países em desenvolvimento, tenham tempo para adaptar os seus produtos ou os seus métodos de produção às exigências do Membro importador.

Artigo 3.º

Elaboração, adopção e aplicação de regulamentos técnicos pela administração local e por organismos não governamentais

No que se refere à administração local e aos organismos não governamentais estabelecidos nos seus territórios:

3.1 - Os Membros tomarão todas as medidas razoáveis ao seu alcance para assegurar que esses serviços e organismos dêem cumprimento ao disposto no artigo 2.º, com excepção da obrigação de notificação referida nos n.os 9.2 e 10.1 do artigo 2.º

3.2 - Os Membros assegurarão que os regulamentos técnicos da administração local ao nível imediatamente inferior da administração central dos Membros sejam notificados em conformidade com o disposto nos n.os 9.2 e 10.1 do artigo 2.º, tendo em conta que a notificação não é exigida para os regulamentos técnicos cujo conteúdo técnico seja idêntico, em substância, ao de regulamentos técnicos da administração central do Membro em causa previamente notificados.

3.3 - Os Membros podem exigir que o contacto com ou outros Membros, incluindo as notificações, a prestação de informações e as discussões mencionadas nos n.os 9 e 10 do artigo 2.º, se efectue através da administração central.

3.4 - Os Membros não tomarão medidas que exijam ou encorajem a administração local ou os organismos não governamentais nos seus territórios a actuar de modo incompatível com as disposições do artigo 2.º

3.5 - No âmbito do presente Acordo, os Membros têm a plena responsabilidade pela observância do disposto no artigo 2.º Os Membros elaborarão e aplicarão medidas e mecanismos positivos que contribuam para o cumprimento das disposições do artigo 2.º pelos organismos que não sejam os da administração central.

Artigo 4.º

Elaboração, adopção e aplicação de normas

4.1 - Os Membros assegurarão que os organismos de normalização da administração central aceitem e cumpram o Código de Boa Prática para a elaboração, adopção e aplicação de normas que se encontram no Anexo 3 do presente Acordo (denominado, no presente Acordo, «Código de Boa Prática»). Adoptarão todas as medidas razoáveis ao seu alcance para garantir que os organismos de normalização da administração local, os organismos de normalização não governamentais no seu território, bem com os organismos de normalização regionais de que sejam membros ou de que um ou mais organismos no seu território sejam membros, aceitem e observem este Código de Boa Prática. Além disso, os Membros não adoptarão medidas que tenham por efeito, directa ou indirectamente, obrigar ou encorajar esses organismos de normalização a actuar de maneira incompatível com o Código de Boa Prática. No que se refere ao cumprimento das disposições do Código de Boa Prática por parte dos serviços de normalização, as obrigações dos Membros são aplicáveis independentemente do facto de o organismo de normalização ter aceitado ou não o Código de Boa Prática.

4.2 - Os organismos de normalização que aceitem e observem o Código de Boa Prática serão reconhecidos pelos Membros como respeitando os princípios do presente Acordo.

Conformidade com os regulamentos técnicos e com as normas

Artigo 5.º

Procedimentos de avaliação da conformidade aplicados pela administração central

5.1 - Nos casos em que é exigida uma garantia de conformidade com regulamentos técnicos ou normas, os Membros assegurarão que os organismos da administração central apliquem aos produtos originários do território de outros Membros as seguintes disposições:

5.1.1 - Os procedimentos de avaliação da conformidade serão elaborados, adoptados e aplicados de modo a garantir o acesso aos fornecedores de produtos similares originários do território de outros Membros em condições não menos favoráveis que as condições concedidas aos fornecedores de produtos nacionais similares ou originários de um outro país, em circunstâncias comparáveis; desse acesso decorre o direito do fornecedor de beneficiar de uma avaliação da conformidade segundo as regras do procedimento de avaliação, incluindo, sempre que previsto por este procedimento, a possibilidade de as actividades de avaliação da conformidade serem efectuadas no local das instalações, bem como de obter a marca do sistema;

5.1.2 - Os procedimentos de avaliação da conformidade não serão elaborados, adoptados ou aplicados com vista a, ou tendo por efeito, criar obstáculos desnecessários ao comércio internacional. Isto implica, nomeadamente, que os procedimentos de avaliação da conformidade não podem ser mais rigorosos nem aplicados de maneira mais estrita do que o necessário para dar ao Membro importador uma garantia suficiente de que os produtos são conformes aos regulamentos técnicos e normas aplicáveis, tendo em conta os riscos que adviriam da não conformidade.

5.2 - Ao aplicar as disposições do n.º 1, os Membros assegurarão:

5.2.1 - Que, no que se refere aos produtos originários dos territórios dos outros Membros, os procedimentos de avaliação da conformidade sejam iniciados e concluídos o mais rapidamente possível e numa ordem não menos favorável do que a aplicada aos produtos nacionais similares;

5.2.2 - Que a duração normal de cada procedimento de avaliação da conformidade seja publicada ou que a duração prevista seja comunicada ao requerente quando solicitado; que, sempre que receba um pedido, o organismo competente examine sem demora se a documentação está completa e comunique ao requerente, de modo preciso e exaustivo, os elementos em falta; que o organismo competente transmita ao requerente, o mais rapidamente possível, os resultados da avaliação, de modo preciso e exaustivo, por forma que possam ser tomadas medidas correctivas, caso sejam necessárias; que, mesmo se o requerimento tiver lacunas, o organismo competente execute o procedimento de avaliação da conformidade até ao estádio mais avançado que for possível materialmente, se assim o solicitar o requerente; e que, quando solicitado, informe o requerente sobre a fase em que o procedimento se encontra, incluindo uma explicação de eventuais atrasos;

5.2.3 - Que os requisitos em matéria de informação se limitem aos elementos necessários para avaliar a conformidade e determinar as taxas;

5.2.4 - Que a confidencialidade da informação sobre os produtos originários dos territórios dos outros Membros, decorrente ou fornecida no âmbito desses procedimentos de avaliação da conformidade, seja respeitada do mesmo modo que relativamente aos produtos nacionais e assegurando a protecção dos interesses comerciais legítimos;

5.2.5 - Que as taxas aplicadas para a avaliação da conformidade de produtos originários dos territórios de outros Membros sejam equitativas relativamente às taxas susceptíveis de serem cobradas pela avaliação da conformidade de produtos similares de origem nacional ou originários de qualquer outro país, tendo em conta os custos de comunicação, transporte ou outros custos decorrentes da diferente localização das instalações do requerente e das instalações do organismo de avaliação da conformidade;

5.2.6 - Que a escolha do local das instalações utilizadas para fins de avaliação da conformidade e os processos de recolha de amostras não constituam um incómodo desnecessário para os requerentes ou os seus agentes;

5.2.7 - Que, sempre que as especificações de um produto sejam alteradas na sequência da determinação da sua conformidade com os regulamentos técnicos ou normas aplicáveis, o procedimento de avaliação da conformidade para o produto alterado se limite ao estritamente necessário para determinar se existe uma garantia suficiente de que o produto ainda satisfaz os requisitos dos regulamentos técnicos ou normas em causa;

5.2.8 - Que haja um procedimento para analisar as denúncias relativas à aplicação de um procedimento de avaliação da conformidade e para tomar as medidas correctivas caso a denúncia seja justificada.

5.3 - Nenhuma disposição dos n.os 1 e 2 impedirá os Membros de executar controlos por amostragem nos seus territórios.

5.4 - Nos casos em que é exigida uma garantia positiva de que os produtos são conformes aos regulamentos técnicos ou às normas, e que existam ou se encontrem em fase de conclusão directrizes ou recomendações pertinentes emitidas por organismos internacionais de normalização, os Membros assegurarão que a administração central utilize essas directrizes ou recomendações ou os seus elementos pertinentes como base para os seus procedimentos de avaliação da conformidade, excepto nos casos em que essas directrizes ou os respectivos elementos pertinentes sejam inadequados para os Membros em causa, nomeadamente por razões de exigências de segurança nacional, de prevenção de práticas susceptíveis de induzir em erro, de protecção da saúde ou da segurança das pessoas, da vida ou da saúde dos animais, da conservação dos vegetais, de protecção do ambiente, de factores climáticos fundamentais ou outros factores geográficos, de problemas fundamentais relacionados com a tecnologia ou as infra-estruturas, devendo tais factos ser devidamente explicados se assim for solicitado.

5.5 - A fim de harmonizar os procedimentos de avaliação da conformidade numa base o mais ampla possível, os Membros participarão plenamente, no limite dos seus recursos, na elaboração de directrizes e recomendações de procedimentos de avaliação da conformidade, efectuada pelos organismos internacionais de normalização.

5.6 - Sempre que não existam directrizes ou recomendações pertinentes emitidas por um organismo internacional de normalização, ou que o conteúdo técnico de um procedimento de avaliação da conformidade proposto não esteja em conformidade com as directrizes e recomendações pertinentes emitidas por organismos internacionais de normalização, e se o procedimento de avaliação da conformidade puder ter um efeito significativo no comércio de outros Membros, os Membros:

5.6.1 - Publicarão, com antecedência suficiente para que as partes interessadas nos outros Membros dele tomem conhecimento, um aviso segundo o qual projectam adoptar um determinado procedimento de avaliação da conformidade;

5.6.2 - Notificarão aos outros Membros, através do Secretariado, os produtos abrangidos pelo procedimento de avaliação da conformidade proposto, indicando sucintamente o objectivo e o fundamento desse procedimento. Tais notificações devem ser efectuadas com a antecedência suficiente para que possam ser introduzidas eventuais alterações e que as observações formuladas possam ser tomadas em consideração;

5.6.3 - Fornecerão aos outros Membros, quando solicitado, informações pormenorizadas ou cópias do procedimento proposto e, sempre que possível, identificarão as partes que, em substância, diferem de directrizes ou recomendações pertinentes emitidas por organismos internacionais de normalização;

5.6.4 - Concederão aos outros Membros, sem discriminação, um prazo razoável para que apresentem as suas observações por escrito, discutirão essas observações se tal lhes for pedido, e tomarão em consideração essas observações escritas e os resultados das discussões.

5.7 - Nos termos das disposições da parte introdutória do n.º 6, caso surjam ou haja o risco de surgir problemas de segurança, saúde, protecção do ambiente ou de segurança nacional para um Membro, este Membro pode omitir algum ou alguns dos trâmites enunciados no n.º 6, conforme julgar necessário, contanto que, aquando da adopção do procedimento:

5.7.1 - Notifique imediatamente aos outros Membros, através do Secretariado, o procedimento específico e os produtos abrangidos, indicando sucintamente o objectivo e o fundamento do procedimento, incluindo a natureza dos problemas urgentes;

5.7.2 - Quando lhe for solicitado, forneça aos outros Membros o texto das regras a seguir;

5.7.3 - Conceda, sem discriminação, aos outros Membros a possibilidade de apresentarem por escrito as suas observações, discuta essas observações se tal lhes for pedido, e tome em consideração essas observações escritas bem como os resultados das discussões.

5.8 - Os Membros garantirão que todos os procedimentos de avaliação da conformidade adoptados sejam publicados no mais curto prazo de tempo ou divulgados por outros meios, de forma a permitir que as partes interessadas de outros Membros deles tomem conhecimento.

5.9 - Salvo nas circunstâncias de urgência previstas no n.º 7, os Membros concederão um prazo razoável entre a publicação dos requisitos relativos aos procedimentos de avaliação da conformidade e a respectiva entrada em vigor, a fim de que os produtores estabelecidos nos Membros exportadores, em especial nos países em desenvolvimento, tenham tempo para adaptar os seus produtos ou os seus métodos de produção às exigências do Membro importador.

Artigo 6.º

Reconhecimento da avaliação da conformidade pela administração central

No que se refere à administração central:

6.1 - Sem prejuízo das disposições dos n.os 3 e 4, os Membros assegurarão, sempre que possível, que os resultados dos procedimentos de avaliação da conformidade de outros Membros sejam aceites, mesmo no caso de esses procedimentos serem diferentes dos seus próprios procedimentos, desde que tenham a certeza de que esses procedimentos oferecem uma garantia de conformidade com os regulamentos técnicos ou normas aplicáveis, equivalente à dos seus próprios procedimentos. Reconhece-se que podem ser necessárias consultas prévias para se chegar a um acordo mutuamente satisfatório, em especial no que respeita:

6.1.1 - À competência técnica adequada e permanente dos organismos de avaliação da conformidade existentes no Membro exportador, que ofereça confiança na fiabilidade contínua dos seus resultados de avaliação de conformidade; neste contexto, a conformidade comprovada, por exemplo através de homologação, com directrizes ou recomendações pertinentes emitidas por organismos internacionais de normalização, será considerada como constituindo uma indicação de competência técnica adequada;

6.1.2 - À limitação da aceitação dos resultados da avaliação da conformidade aos resultados obtidos por organismos designados pelo Membro exportador.

6.2 - Os Membros assegurarão que os seus procedimentos de avaliação da conformidade sejam de molde a permitir, tanto quanto possível, a execução do disposto no n.º 1.

6.3 - Encorajam-se os Membros, quando solicitado por outros Membros, a estabelecer negociações com vista à conclusão de acordos de reconhecimento mútuo dos resultados dos respectivos procedimentos de avaliação da conformidade. Os Membros poderão exigir que tais acordos preencham os critérios constantes do n.º 1 e os satisfaçam mutuamente no que se refere à possibilidade de facilitar o comércio dos produtos em causa.

6.4 - Encorajam-se os Membros a permitir que organismos de avaliação da conformidade estabelecidos nos territórios de outros Membros participem nos seus procedimentos de avaliação da conformidade em condições não menos favoráveis que as condições concedidas a organismos estabelecidos no seu território ou no território de qualquer outro país.

Artigo 7.º

Procedimentos de avaliação da conformidade pela administração local

No que se refere à administração local nos seus territórios:

7.1 - Os Membros tomarão todas as medidas razoáveis ao seu alcance para assegurar que os organismos da administração local cumpram as disposições dos artigos 5.º e 6.º, com excepção da obrigação de notificação tal como referido nos n.os 6.2 e 7.1 do artigo 5.º

7.2 - Os Membros assegurarão que os procedimentos de avaliação da conformidade dos organismos da administração local ao nível imediatamente inferior ao da administração central sejam notificados em conformidade com o disposto nos n.os 6.2 e 7.1 do artigo 5.º, tendo em conta que a notificação não é exigida para os procedimentos de avaliação da conformidade cujo conteúdo técnico seja idêntico, em substância, ao de procedimentos de avaliação da conformidade de organismos da administração central dos Membros em causa previamente notificados.

7.3 - Os Membros podem exigir que o contacto com os outros Membros, incluindo as notificações, a prestação de informações e as discussões mencionadas nos n.os 6 e 7 do artigo 5.º, se efectue através da administração central.

7.4 - Os Membros não tomarão medidas que exijam ou encorajem os organismos da administração local nos seus territórios a actuar de modo incompatível com as disposições dos artigos 5.º e 6.º

7.5 - No âmbito do presente Acordo, incumbe aos Membros a plena responsabilidade pela observância de todas as disposições dos artigos 5.º e 6.º Os Membros elaborarão e aplicarão medidas e mecanismos positivos a fim de contribuir para o cumprimento das disposições dos artigos 5.º e 6.º por organismos que não sejam os da administração central.

Artigo 8.º

Procedimentos de avaliação da conformidade por organismos não governamentais

8.1 - Os Membros tomarão todas as medidas razoáveis ao seu alcance para assegurar que os organismos não governamentais do seu território, que apliquem procedimentos de avaliação da conformidade, cumpram as disposições dos artigos 5.º e 6.º, com excepção da obrigação de notificar os procedimentos de avaliação da conformidade propostos. Além disso, os Membros não adoptarão medidas que tenham por efeito directo ou indirecto obrigar ou encorajar esses organismos a actuar de modo incompatível com as disposições dos artigos 5.º e 6.º

8.2 - Os Membros assegurarão que os organismos da sua administração central apenas se baseiem nos procedimentos de avaliação da conformidade executados por organismos não governamentais se estes cumprirem as disposições dos artigos 5.º e 6.º, com excepção da obrigação de notificar os procedimentos de avaliação da conformidade propostos.

Artigo 9.º

Sistemas internacionais e regionais

9.1 - Nos casos em que é exigida a garantia da conformidade com um regulamento técnico ou uma norma, os Membros, sempre que lhes seja possível na prática, elaborarão e adoptarão sistemas internacionais de avaliação da conformidade e tornar-se-ão membros ou participarão em tais sistemas.

9.2 - Os Membros tomarão todas as medidas razoáveis ao seu alcance para assegurar que os sistemas internacionais e regionais de avaliação da conformidade, de que sejam membros ou em que participem organismos competentes do seu território, respeitem as disposições dos artigos 5.º e 6.º Além disso, os Membros não adoptarão medidas que tenham por efeito directo ou indirecto obrigar ou encorajar esses sistemas a actuar de modo incompatível com as disposições dos artigos 5.º e 6.º

9.3 - Os Membros assegurarão que os organismos da administração central apenas se baseiem nos procedimentos de avaliação da conformidade internacionais ou regionais se estes estiverem em conformidade com as disposições dos artigos 5.º e 6.º, conforme aplicável.

Informação e assistência

Artigo 10.º

Informação em matéria de regulamentos técnicos, normas e procedimentos de avaliação da conformidade

10.1 - Cada Membro providenciará para que exista um ponto de informação que possa responder a todos os pedidos razoáveis de informação formulados por outros Membros ou por partes interessadas estabelecidas no território de outros Membros, bem como facultar os documentos úteis em matéria de:

10.1.1 - Quaisquer regulamentos técnicos que tenham adoptado ou projectem adoptar no seu território a administração central, a administração local, organismos não governamentais legalmente habilitados para fazer cumprir um regulamento técnico ou organismos regionais de normalização dos quais sejam membros ou nos quais participem;

10.1.2 - Quaisquer normas que tenham adoptado ou projectem adoptar no seu território a administração central, a administração local ou organismos regionais de normalização dos quais sejam membros ou nos quais participem;

10.1.3 - Quaisquer procedimentos de avaliação da conformidade, existentes ou em projecto, que sejam aplicados no seu território pela administração central, pela administração local, por organismos não governamentais com competência para fazer cumprir um regulamento técnico, ou por organismos regionais dos quais sejam membros ou nos quais participem;

10.1.4 - Estatuto de membro e participação do Membro, ou de órgãos da administração central ou da administração local, em organismos internacionais e regionais de normalização e em sistemas de avaliação da conformidade, bem como em convénios bilaterais ou multilaterais no âmbito do presente Acordo; deve também poder prestar uma informação adequada sobre as disposições previstas em tais sistemas e convénios;

10.1.5 - Os locais onde se encontram os avisos publicados em conformidade com o presente Acordo, ou a indicação dos locais onde essas informações pode ser obtidas; e

10.1.6 - Os locais onde se encontram os pontos de informação referidos no n.º 3.

10.2 - No entanto, se por razões jurídicas ou administrativas um Membro instalar mais de um ponto de informação, esse Membro deve prestar aos outros Membros informações completas e precisas sobre a responsabilidade atribuída a cada um desses pontos de informação. Além disso, esse Membro assegurará que os pedidos de informação dirigidos a um ponto de informação incorrecto sejam imediatamente transferidos para o ponto de informação adequado.

10.3 - Cada Membro tomará todas as medidas razoáveis ao seu alcance para assegurar a existência de um ou vários pontos de informação que possam dar resposta a todos os pedidos razoáveis de informação formulados por outros Membros ou por partes interessadas estabelecidas no território de outros Membros, bem como facultar todos os documentos pertinentes ou informar onde podem ser obtidos, no que se refere a:

10.3.1 - Quaisquer normas que tenham adoptado ou projectem adoptar no seu território organismos não governamentais de normalização ou organismos regionais de normalização dos quais esses organismos sejam membros ou nos quais participem; e

10.3.2 - Quaisquer procedimentos de avaliação da conformidade, existentes ou em projecto, aplicados no seu território por organismos não governamentais, ou por organismos regionais dos quais esses organismos sejam membros ou nos quais participem;

10.3.3 - Ao estatuto de membro e participação dos organismos não governamentais no seu território em organismos internacionais e regionais de normalização e em sistemas de avaliação da conformidade, bem como em convénios bilaterais ou multilaterais no âmbito do presente Acordo; devem também poder prestar uma informação razoável sobre as disposições previstas em tais sistemas e convénios.

10.4 - Os Membros tomarão todas as medidas ao seu alcance para assegurar que, quando os outros Membros ou partes interessadas estabelecidas no território de outros Membros solicitem exemplares de documentos, em conformidade com as disposições do presente Acordo, tais exemplares lhes sejam fornecidos a um preço equitativo (quando não forem gratuitos) excluindo o custo real de expedição, que deve ser o mesmo para os nacionais (ver nota 1) do Membro em questão ou de qualquer outro Membro.

10.5 - Os países desenvolvidos Membros, caso outros Membros o solicitem, facultarão traduções em língua inglesa, francesa ou espanhola dos documentos abrangidos por uma notificação específica ou, no caso de documentos volumosos, resumos desses documentos.

10.6 - Quando receber notificações em conformidade com o disposto no presente Acordo, o Secretariado enviará a todos os Membros, aos organismos internacionais de normalização interessados e aos organismos de avaliação da conformidade cópias das notificações, chamando a atenção dos países em desenvolvimento Membros para as notificações relativas a produtos de especial interesse para esses países.

10.7 - O Membro que tiver celebrado com um outro país ou países um acordo em matéria de regulamentos técnicos, normas ou procedimentos de avaliação da conformidade, susceptível de ter um efeito significativo para o comércio com, pelo menos, um Membro que seja parte no presente Acordo, deve notificar aos outros Membros, através do Secretariado, os produtos abrangidos pelo acordo, e incluir uma descrição sucinta do acordo. Encoraja-se os Membros em causa a iniciar, quando solicitado, consultas com outros Membros na perspectiva de concluir acordos similares ou de adoptar medidas com vista à sua participação nesses acordos.

10.8 - Nenhuma das disposições do presente Acordo será interpretada no sentido de impor:

10.8.1 - A publicação de textos em língua que não seja a do Membro;

10.8.2 - A comunicação de informações pormenorizadas ou de textos de projectos em língua que não seja a do Membro, sem prejuízo do disposto no n.º 5; ou

10.8.3 - A comunicação pelos Membros de informações cuja divulgação seria, em sua opinião, contrária aos interesses essenciais da sua segurança.

10.9 - As notificações transmitidas ao Secretariado devem ser redigidas em inglês, francês ou espanhol.

10.10 - Os Membros nomearão uma autoridade única da administração central responsável pela aplicação, ao nível nacional, das disposições relativas aos procedimentos de notificação nos termos do presente Acordo, com excepção das disposições constantes do Anexo 3.

10.11 - Se, no entanto, por razões de natureza administrativa ou jurídica, a responsabilidade pelos procedimentos de notificação for repartida por duas ou mais autoridades do governo central, o Membro em causa facultará aos outros Membros informações exaustivas e precisas sobre o âmbito da responsabilidade respectiva de cada uma dessas autoridades.

(nota 1) No que se refere a um território aduaneiro separado Membro da OMC e para efeitos do presente, entende-se por «nacionais» as pessoas singulares ou colectivas, domiciliadas nesse território aduaneiro ou que tenham um estabelecimento industrial ou comercial real e efectivo nesse território aduaneiro.

Artigo 11.º

Assistência técnica aos outros Membros

11.1 - Se tal lhes for pedido, os Membros aconselharão os outros Membros, especialmente os países em desenvolvimento Membros, em matéria de elaboração de regulamentos técnicos.

11.2 - Se tal lhes for pedido, os Membros aconselharão os outros Membros, especialmente os países em desenvolvimento Membros, e prestar-lhes-ão assistência técnica, nas modalidades e condições estabelecidas de comum acordo, no que respeita à criação de organismos nacionais de normalização, à participação em organismos internacionais de normalização e encorajarão os seus organismos nacionais de normalização a actuar de maneira semelhante.

11.3 - Se tal lhes for pedido, os Membros tomarão todas as medidas razoáveis ao seu alcance para que os organismos de normalização existentes no seu território aconselhem os outros Membros, especialmente os países em desenvolvimento Membros, prestando-lhes assistência técnica, nas modalidades e condições estabelecidas de comum acordo, no que respeita:

11.3.1 - À criação de organismos de normalização ou de organismos de avaliação da conformidade com os regulamentos técnicos; e

11.3.2 - Aos métodos que melhor permitam cumprir os seus regulamentos técnicos.

11.4 - Se tal lhes for pedido, os Membros tomarão todas as medidas razoáveis ao seu alcance para que sejam dados conselhos aos outros Membros, especialmente os países em desenvolvimento, e prestar-lhes-ão assistência técnica, nas modalidades e condições mutuamente acordadas, em matéria de criação de organismos de avaliação da conformidade com as normas adoptadas no território do Membro que o tiver solicitado.

11.5 - Se tal lhes for pedido, os Membros aconselharão os outros Membros, especialmente os países em desenvolvimento, e prestar-lhes-ão assistência técnica, nas modalidades e condições estabelecidas de comum acordo, no que respeita aos trâmites a seguir pelos seus produtores que desejem participar em sistemas de avaliação da conformidade aplicados por organismos da administração pública ou por organismos não governamentais, no território do Membro a que o pedido foi dirigido.

11.6 - Os Membros que sejam membros de sistemas internacionais ou regionais de avaliação da conformidade, ou que neles participem, se tal lhes for pedido, aconselharão os outros Membros, especialmente os países em desenvolvimento, e prestar-lhes-ão assistência técnica, nas modalidades e condições estabelecidas de comum acordo, no que respeita à criação das instituições e do quadro jurídico que lhes permitam cumprir as obrigações decorrentes da qualidade de membro desses sistemas ou da participação nesses sistemas.

11.7 - Se tal lhes for pedido, os Membros encorajarão os organismos do seu território membros de sistemas internacionais ou regionais de avaliação da conformidade, ou que neles participem, a aconselhar os outros Membros, especialmente os países em desenvolvimento Membros, e devem tomar em consideração os seus pedidos de assistência técnica no que respeita à criação de instituições que permitam aos organismos competentes do seu território cumprirem as obrigações decorrentes do estatuto de membro desses sistemas ou da participação nesses sistemas.

11.8 - Ao prestar conselhos e assistência técnica a outros Membros nos termos dos n.os 1 a 7, os Membros devem dar prioridade às necessidades dos países menos desenvolvidos Membros.

Artigo 12.º

Tratamento especial e diferenciado a favor dos países em desenvolvimento Membros

12.1 - Os Membros concederão um tratamento diferenciado e mais favorável aos países em desenvolvimento Membros do presente Acordo, em aplicação das seguintes disposições, bem como das disposições pertinentes de outros artigos do presente acordo.

12.2 - Os Membros concederão uma especial atenção às disposições do presente Acordo em matéria de direitos e obrigações dos países em desenvolvimento Membros e terão em conta as necessidades especiais de desenvolvimento, das finanças e do comércio destes países, aquando da execução do presente Acordo, tanto ao nível nacional, como na aplicação das disposições institucionais nele previstas.

12.3 - Na elaboração e aplicação de regulamentos técnicos, normas e procedimentos de avaliação da conformidade, os Membros terão em consideração as necessidades especiais de desenvolvimento, das finanças e do comércio dos países em desenvolvimento Membros, por forma a garantir que esses regulamentos técnicos, normas e procedimentos de avaliação da conformidade não criem obstáculos desnecessários às exportações dos países em desenvolvimento Membros.

12.4 - Os Membros admitem que, embora possa haver normas internacionais, guias ou recomendações, nas condições tecnológicas e sócio-económicas que lhes são próprias, os países em desenvolvimento Membros adoptem determinados regulamentos técnicos, normas ou procedimentos de avaliação da conformidade tendo em vista preservar técnicas, métodos e processos de produção indígenas compatíveis com as suas necessidades de desenvolvimento. Os Membros reconhecem, por conseguinte, que não será de esperar que os países em desenvolvimento Membros apliquem, como base nos seus regulamentos técnicos ou normas, incluindo métodos de ensaio, normas internacionais que não se coadunem com as suas necessidades em matéria de desenvolvimento, finanças e comércio.

12.5 - Os Membros tomarão todas as medidas razoáveis ao seu alcance para assegurar que a organização e o funcionamento dos organismos internacionais de normalização e os sistemas internacionais de avaliação da conformidade sejam de molde a facilitar uma participação activa e representativa dos organismos competentes de todos os Membros, tendo em consideração os problemas específicos dos países em desenvolvimento Membros.

12.6 - Os Membros tomarão todas as medidas razoáveis ao seu alcance para assegurar que os organismos internacionais de normalização, a pedido de países em desenvolvimento Membros, examinem a possibilidade de elaborar, e, se possível, elaborem, normas internacionais referentes a produtos de especial interesse para esses países em desenvolvimento Membros.

12.7 - Nos termos do disposto no artigo 11.º, os Membros prestarão assistência técnica aos países em desenvolvimento Membros para assegurar que a elaboração e aplicação de regulamentos técnicos, normas e procedimentos de avaliação da conformidade não criem obstáculos desnecessários à expansão e diversificação das exportações desses países em desenvolvimento Membros. Ao determinar as modalidades e as condições desta assistência técnica, será tido em conta o grau de desenvolvimento dos Membros que a pediram e, em especial, dos países menos desenvolvidos Membros.

12.8 - Reconhece-se que os países em desenvolvimento Membros podem ser confrontados com problemas especiais, nomeadamente com problemas institucionais e de infra-estrutura, no que respeita à elaboração e aplicação de regulamentos técnicos, de normas e de procedimentos de avaliação da conformidade. Reconhece-se também que as suas necessidades específicas em matéria de desenvolvimento e de comércio, bem como o seu grau de desenvolvimento tecnológico, podem limitar a sua capacidade para cumprir integralmente as suas obrigações decorrentes do presente Acordo. Os Membros terão, pois, plenamente em conta este facto. Por conseguinte, para garantir que os países em desenvolvimento Membros estejam em condições de cumprir as disposições do presente Acordo, o Comité dos Obstáculos Técnicos ao Comércio previsto no artigo 13.º (referido no presente Acordo como o «Comité») fica habilitado a conceder, a pedido, excepções especificadas e limitadas no tempo, ao todo ou a parte das obrigações decorrentes do presente Acordo. Ao examinar estes pedidos, o Comité terá em conta os problemas especiais respeitantes à elaboração e aplicação de regulamentos técnicos, de normas e de procedimentos de avaliação da conformidade e as necessidades específicas de desenvolvimento e de comércio do país em desenvolvimento Membro, bem como o seu grau de desenvolvimento tecnológico, que possam limitar a sua capacidade de cumprir integralmente as suas obrigações decorrentes do presente Acordo. O Comité terá em conta, em especial, os problemas específicos dos países menos desenvolvidos Membros.

12.9 - No decurso das consultas, os países desenvolvidos Membros terão presente as dificuldades especiais que enfrentam os países em desenvolvimento Membros na elaboração e aplicação de normas e regulamentos técnicos e dos procedimentos de avaliação da conformidade e, no seu desejo de ajudar os países em desenvolvimento Membros nos seus esforços neste campo, os países desenvolvidos Membros terão em conta as suas necessidades especiais em matéria de finanças, comércio e desenvolvimento.

12.10 - O Comité examinará periodicamente o tratamento especial e diferenciado previsto neste Acordo, concedido aos países em desenvolvimento Membros, tanto a nível nacional como internacional.

Instituições, consultas e resoluções de litígios

Artigo 13.º

Comité dos Obstáculos Técnicos ao Comércio

13.1 - É instituído um Comité dos Obstáculos Técnicos ao Comércio, composto por representantes de cada um dos Membros. O Comité elegerá o seu presidente e reunir-se-á sempre que necessário, e, pelo menos, uma vez por ano, para dar aos Membros a possibilidade de procederem a consultas sobre qualquer questão relativa à aplicação do Acordo ou à concretização dos seus objectivos, e exercerá as funções que lhes forem atribuídas por força do presente Acordo ou pelos Membros.

13.2 - O Comité constituirá grupos de trabalho ou outros órgãos, conforme adequado, que exercerão as funções que lhes forem atribuídas pelo Comité, de acordo com as disposições pertinentes do presente Acordo.

13.3 - Fica entendido que devem ser evitadas todas as duplicações desnecessárias de trabalhos efectuados no âmbito do presente Acordo e os trabalhos das administrações públicas noutros organismos técnicos. O Comité examinará este problema com vista a reduzir ao mínimo qualquer duplicação.

Artigo 14.º

Consultas e resolução de litígios

14.1 - As consultas e a resolução de litígios relativamente a quaisquer assuntos que afectem o funcionamento do presente Acordo realizar-se-ão sob os auspícios do Órgão de Resolução de Litígios e devem reger-se, mutatis mutandis, pelas disposições dos artigos XXII e XXIII do GATT 1994, com a elaboração e aplicação que lhes foi dada pelo Memorando de Entendimento sobre a Resolução de Litígios.

14.2 - A pedido de uma parte num litígio, ou por sua própria iniciativa, um painel pode constituir um grupo de peritos técnicos para o assistir em questões de natureza técnica que exijam uma análise aprofundada por peritos.

14.3 - Os grupos de peritos técnicos reger-se-ão pelos procedimentos previstos no Anexo 2.

14.4 - As disposições relativas à resolução de litígios acima enunciados podem ser invocadas nos casos em que um Membro considere que um outro Membro não conseguiu obter resultados satisfatórios nos termos dos artigos 3.º, 4.º, 7.º, 8.º e 9.º e que os seus interesses comerciais são afectados de uma forma significativa. Neste contexto, esses resultados devem ser equivalentes aos resultados que seriam obtidos se o órgão em questão fosse um Membro.

Disposições finais

Artigo 15.º

Disposições finais

Reservas

15.1 - Não podem ser formuladas reservas em relação às disposições do presente Acordo sem o consentimento dos outros Membros.

Exame

15.2 - No mais curto prazo de tempo após a entrada em vigor do Acordo OMC, cada Membro notificará ao Comité as medidas existentes ou que tenha adoptado para assegurar a execução e administração do presente Acordo. Notificará também ao Comité quaisquer alterações posteriores dessas medidas.

15.3 - O Comité examinará anualmente a execução e o funcionamento do presente Acordo, tendo em conta os seus objectivos.

15.4 - O mais tardar no final do terceiro ano a contar da data de entrada em vigor do Acordo OMC e, posteriormente, no final de cada período de três anos, o Comité examinará o funcionamento e a execução do presente Acordo, incluindo as disposições relativas à transparência, com vista a recomendar um ajustamento dos direitos e obrigações dele decorrentes, caso seja necessário, a fim de garantir as vantagens económicas mútuas e o equilíbrio dos direitos e obrigações, sem prejuízo do disposto no artigo 12.º Tendo em conta, nomeadamente, a experiência adquirida com a execução do Acordo, o Comité, apresentará ao Conselho do Comércio e das Mercadorias propostas de alterações do texto do presente Acordo sempre que adequado.

Anexos

15.5 - Os anexos do presente Acordo fazem dele parte integrante.

ANEXO 1

TERMOS E AS SUAS DEFINIÇÕES PARA EFEITOS DO PRESENTE ACORDO

Os termos apresentados na 6.ª edição do Guia 2 ISO/CEI «Termos gerais e suas definições relativos à normalização e actividades conexas» 1991, quando utilizados no presente Acordo terão uma acepção idêntica à do Guia, tendo em conta que os serviços estão excluídos do âmbito de aplicação do presente Acordo.

No entanto, para efeitos do presente Acordo, são aplicáveis as seguintes definições:

1 - Regulamento técnico. - Documento que identifica as características de um produto ou de processos e métodos de produção relacionados com essas características, incluindo as disposições administrativas aplicáveis, cujo cumprimento é obrigatório. Pode também incluir ou conter exclusivamente terminologia, símbolos, requisitos em matéria de embalagem, marcação ou etiquetagem aplicáveis a um produto, a um processo ou a um método de produção.

Nota explicativa. - A definição do Guia ISO/CEI 2 não é autónoma, mas baseia-se num sistema que remete para outras definições.

2 - Norma. - Documento aprovado por um organismo reconhecido, que prevê, para uma utilização corrente ou repetida, regras, directrizes ou características de produtos ou processos e métodos de produção conexos, cujo cumprimento não é obrigatório. Pode também incluir ou conter exclusivamente terminologia, símbolos, requisitos em matéria de embalagem, marcação ou etiquetagem aplicáveis a um produto, a um processo ou a um método de produção.

Nota explicativa. - Os termos definidos no Guia ISO/CEI 2 abrangem produtos, processos e serviços. O presente acordo diz apenas respeito aos regulamentos técnicos, às normas e aos procedimentos de avaliação da conformidade relativos a produtos ou processos e métodos de produção. Podem também incluir ou conter exclusivamente terminologia, símbolos, requisitos em matéria de embalagem, marcação ou etiquetagem aplicáveis a um produto, a um processo ou a um método de produção. As normas tal como definidas no Guia ISO/CEI podem ser obrigatórias ou facultativas. Para efeitos do presente Acordo, as normas são definidas como facultativas e os regulamentos técnicos como documentos obrigatórios. As normas elaboradas pela comunidade de normalização internacional baseiam-se numa decisão consensual. O presente Acordo abrange também documentos que não se baseiam num consenso.

3 - Procedimentos de avaliação da conformidade. - Qualquer procedimento a que se recorre, directa ou indirectamente, para determinar se são preenchidos os requisitos pertinentes fixados por regulamentos técnicos ou normas.

Nota explicativa. - Os procedimentos de avaliação da conformidade incluem, entre outros, os procedimentos de amostragem, ensaio e controlo, avaliação, verificação e garantia da conformidade, registo, homologação e aprovação, bem como suas combinações.

4 - Organismo ou sistema internacional. - Organismo ou sistema em que podem participar todos os organismos competentes de, pelo menos, todos os Membros.

5 - Organismo ou sistema regional. - Organismo ou sistema em que podem participar todos os organismos competentes de apenas alguns Membros.

6 - Administração central. - Governo central, seus ministérios e serviços ou qualquer organismo sujeito ao controlo do governo central no que se refere à actividade em questão.

Nota explicativa. - No caso das Comunidades Europeias, são aplicáveis as disposições relativas à administração central. No entanto, podem estabelecer-se nas Comunidades Europeias organismos ou sistemas de avaliação da conformidade regionais que, nestes casos, estarão sujeitos às disposições do presente Acordo no que se refere aos organismos ou sistemas de avaliação da conformidade regionais.

7 - Administração local. - Outra administração que não a administração central (p. ex., estados, províncias, Länder, cantões, municípios, etc.), seus ministérios ou serviços ou qualquer organismo sujeito ao controlo dessa administração no que se refere à actividade em questão.

8 - Organismo não governamental. - Qualquer organismo que não faça parte da administração central, nem da administração regional ou local, incluindo os organismos não governamentais que tenham competência legal para fazer respeitar um regulamento técnico.

ANEXO 2

GRUPOS DE PERITOS TÉCNICOS

Os procedimentos seguintes são aplicáveis aos grupos de peritos técnicos constituídos em conformidade com o disposto no artigo 14.º

1 - Os grupos de peritos técnicos estão dependentes da autoridade do painel. O seu mandato e os métodos de trabalho serão estabelecidos pelo painel, ao qual apresentarão os seus relatórios.

2 - Apenas poderão participar nos grupos de peritos técnicos pessoas com competência e experiência profissionais reconhecidas no domínio em questão.

3 - Os nacionais das partes num litígio não podem participar num grupo de peritos técnicos sem o acordo conjunto das partes nesse litígio, excepto em circunstâncias excepcionais em que o painel considere que não é possível dispor de outro modo dos conhecimentos científicos especializados necessários. Os funcionários públicos das partes num litígio não podem ser membros de um grupo de peritos técnicos. Os membros de grupos de peritos técnicos são-no a título pessoal e não como representantes do governo, nem como representantes de qualquer organização. Por conseguinte, os governos ou as organizações não poderão dar-lhes instruções relativas aos assuntos que devem ser tratados pelo grupo de peritos técnicos.

4 - Os grupos de peritos técnicos podem consultar e solicitar informações e pareceres técnicos junto de qualquer fonte que considerem adequada. Antes de procurar tais informações ou pareceres junto de uma entidade estabelecida na jurisdição de um Membro, o grupo de peritos técnicos deve informar o governo desse Membro. Os Membros responderão exaustivamente e no mais curto prazo de tempo a qualquer pedido de informações apresentado por um grupo de peritos técnicos, conforme este julgar necessário e adequado.

5 - As partes num litígio terão acesso a todas as informações pertinentes prestadas a um grupo de peritos técnicos excepto se se tratar de informações de natureza confidencial. As informações confidenciais comunicadas a um grupo de peritos técnicos não podem ser divulgadas sem a autorização formal do governo, organização ou pessoa que comunicou tais informações. Caso tais informações sejam solicitadas a um grupo de peritos técnicos, mas que não seja permitida a sua divulgação pelo grupo de peritos técnicos, será entregue um resumo não confidencial dessas informações pelo governo, organização ou pessoa que as tenha facultado.

6 - O grupo de peritos técnicos apresentará um projecto de relatório aos Membros em causa, para que formulem as suas observações sobre esse projecto; estas observações serão tidas em conta, se for caso disso, no relatório final, o qual será também transmitido aos Membros em causa aquando da sua transmissão ao painel.

ANEXO 3

CÓDIGO DE BOA PRÁTICA EM MATÉRIA DE ELABORAÇÃO, ADOPÇÃO E APLICAÇÃO DE NORMAS

Disposições gerais

A - Para efeitos do presente Código, são aplicáveis as definições do Anexo 1 do presente Acordo.

B - A aceitação do presente Código fica aberta a qualquer organismo de normalização estabelecido no território de qualquer Membro da OMC, quer se trate de um organismo da administração central, de um organismos da administração local ou de um organismo não governamental; a qualquer organismo de normalização regional que conte entre os seus membros um ou mais Membros da OMC; e a qualquer organismo de normalização regional não governamental do qual um ou mais membros estejam estabelecidos no território de um Membro da OMC (denominados, no presente Código, colectivamente «organismos de normalização» e individualmente «o organismo de normalização»).

C - Os organismos de normalização que tenham aceitado ou denunciado o presente código, devem notificar esse facto ao Centro de Informação ISO/CEI em Genebra. A notificação deve conter a denominação e o endereço do organismo em causa e o campo das suas actividades de normalização actuais e previstas. A notificação pode ser enviada ao Centro de Informação ISO/CEI quer directamente, quer através do organismo nacional membro do ISO/CEI, quer ainda, de preferência, através do membro nacional ou internacional da ISONET, conforme adequado.

Disposições substantivas

D - No que se refere às normas, o organismo de normalização concederá aos produtos originários do território de qualquer outro Membro da OMC um tratamento não menos favorável que o tratamento concedido a produtos similares de origem nacional e a produtos similares originários de qualquer outro país.

E - O organismo de normalização assegurará que as normas não sejam elaboradas, adoptadas ou aplicadas tendo em vista ou por efeito criar obstáculos desnecessários ao comércio internacional.

F - Caso existam normas internacionais em vigor ou em fase de finalização, o organismo de normalização deve utilizar essas normas ou os seus elementos pertinentes, como base para as normas que elabora, excepto nos casos em que tais normas ou seus elementos pertinentes sejam ineficazes ou inadequados, devido, por exemplo, a um nível de protecção insuficiente ou a factores climatéricos ou geográficos fundamentais, ou a problemas tecnológicos fundamentais.

G - A fim de harmonizar as normas à escala numa base o mais ampla possível, o organismo de normalização participará plenamente e de modo adequado, nos limites dos seus recursos, na elaboração, pelos organismos de normalização internacionais competentes, de normas internacionais relativas a uma matéria na qual tenha adoptado ou preveja adoptar uma norma. A participação de organismos de normalização estabelecidos no território de um Membro numa determinada actividade de normalização internacional far-se-á, sempre que possível, através de uma delegação que represente todos os organismos de normalização no território que adoptou ou preveja adoptar normas na matéria visada pela actividade de normalização internacional.

H - O organismo de normalização estabelecido no território de um Membro desenvolverá todos os esforços para evitar a duplicação ou a sobreposição com o trabalho de outros organismos de normalização no território nacional ou com o trabalho de organismos de normalização internacionais ou regionais competentes. Desenvolverão também todos os esforços com vista a obter um consenso nacional no que se refere às normas que elaborarem. Do mesmo modo, o organismo de normalização regional desenvolverá todos os esforços para evitar a duplicação ou a sobreposição com o trabalho dos organismos de normalização internacionais competentes.

I - Sempre que adequado, o organismo de normalização procurará definir normas baseadas nos requisitos do produto em função do desempenho funcional e não em termos de características de concepção ou descritivas.

J - O organismo de normalização publicará, pelo menos semestralmente, um programa de trabalho em que mencionará a sua denominação e endereço, as normas que tem em preparação e as normas adoptadas no período anterior. Uma norma é considerada como estando em preparação a partir do momento em que foi tomada a decisão de a elaborar até à sua adopção. Quando pedido, os títulos dos projectos de normas específicas devem ser comunicados em inglês, francês e espanhol. Uma nota relativa à existência do programa de trabalho deve ser publicada numa publicação regional ou nacional, conforme o caso, sobre as actividades de normalização.

O programa de trabalho deve indicar, para cada norma e segundo as regras ISONET, qual a classificação correspondente ao assunto, a fase de desenvolvimento em que se encontra a norma e as referências das normas internacionais que serviam de base. O organismo de normalização notificará ao Centro de Informação ISO/CEI em Genebra a existência do seu programa de trabalho o mais tardar na data em que este tiver sido publicado.

A notificação conterá a denominação e o endereço do organismo de normalização, o título e o número da publicação na qual foi publicado o programa de trabalho, o período a que se refere o programa de trabalho, o preço (se não for gratuita a publicação) e indicará como e onde pode ser obtida. A notificação pode ser enviada directamente ao Centro de Informação ISO/CEI ou, de preferência, através do membro da ISONET competente, nacional ou internacional, conforme adequado.

K - O membro nacional da ISO/CEI envidará todos os esforços para tornar-se membro da ISONET ou designar um outro organismo para tornar-se membro, bem como para que o membro da ISONET obtenha o estatuto de membro mais avançado possível. Os outros organismos de normalização desenvolverão todos os esforços para associar-se com o membro da ISONET.

L - Antes de adoptar uma norma, o organismo de normalização deve prever um período de, pelo menos, 60 dias para que as partes interessadas no território de um Membro da OMC possam apresentar observações sobre o projecto de norma. No entanto, este prazo pode ser abreviado nos casos em que surjam ou haja o risco de surgir problemas urgentes de segurança, saúde ou ambiente. O organismo de normalização informará qual o prazo para apresentação de observações, numa nota a publicar na publicação referida no ponto J, o mais tardar no início do período para apresentação dessas observações. A nota indicará, se possível, as divergências eventuais entre o projecto de norma e as normas internacionais pertinentes.

M - A pedido de qualquer parte interessada no território de um Membro da OMC, o organismo de normalização facultará imediatamente, ou tomará disposições para esse efeito, uma cópia do projecto de norma divulgado para apresentação de observações. A quantia eventualmente cobrada por este serviço, excluindo o custo real de expedição, deve ser idêntica para as partes nacionais e estrangeiras.

N - Nos trabalhos de elaboração da norma que se seguirão, o organismo de normalização tomará em consideração as observações apresentadas durante o período previsto para esse efeito. Se tal for pedido, deve ser dada uma resposta, o mais rapidamente possível, às observações apresentadas por organismos de normalização que tenham aceitado o presente Código de Prática. A resposta incluirá uma explicação das razões pelas quais é necessário afastar-se das normas internacionais pertinentes.

O - Logo após a sua adopção, a norma será publicada no mais curto prazo de tempo.

P - A pedido de qualquer parte interessada no território de um membro da OMC, o organismo de normalização facultará sem demora, ou tomarás as medidas para esse efeito, uma cópia do seu programa de trabalho mais recente ou de uma norma que tenha elaborado. A quantia eventualmente cobrada por este serviço, excluindo o custo real de expedição, deve ser idêntica para as partes nacionais e estrangeiras.

Q - O organismo de normalização considerará com compreensão, dispensando o tempo adequado, as consultas relativas às representações em matéria de funcionamento do código solicitadas por organismos de normalização que tenham aceitado o presente Código de Boa Prática, e desenvolverá esforços concretos para resolver quaisquer denúncias.

ACORDO SOBRE AS MEDIDAS DE INVESTIMENTO RELACIONADAS COM O COMÉRCIO

Os Membros:

Considerando que os Ministros acordaram, na Declaração de Punta del Este, que «Na sequência de uma análise do funcionamento dos artigos do GATT relacionados com os efeitos restritivos e distorcedores para o comércio das medidas de investimento, as negociações deveriam conduzir, na medida do adequado, à aprovação de novas disposições que podem ser necessárias para evitar tais efeitos prejudiciais no comércio»;

Desejosos de promover a expansão e a progressiva liberalização do comércio mundial e de facilitar o investimento internacional de modo a reforçar o crescimento económico de todos os parceiros comerciais, especialmente dos países Membros em desenvolvimento, assegurando simultaneamente a livre concorrência;

Tendo em conta as necessidades comerciais, de desenvolvimento e financeiras específicas dos países Membros em desenvolvimento, especialmente dos países Membros menos desenvolvidos;

Reconhecendo que certas medidas de investimento podem ter efeitos restritivos e distorcedores no comércio;

acordam no seguinte:

Artigo 1.º

Âmbito

O presente Acordo é aplicável às medidas de investimento relacionadas apenas com o comércio de mercadorias (designadas no presente Acordo como «TRIM»).

Artigo 2.º

Tratamento nacional e restrições quantitativas

1 - Sem prejuízo dos outros direitos e obrigações previstos no GATT 1994, nenhum Membro aplicará qualquer TRIM que seja incompatível com o disposto nos artigos III ou IX do GATT 1994.

2 - No anexo ao presente Acordo é apresentada uma lista exemplificativa das TRIM incompatíveis com a obrigação de tratamento nacional prevista no n.º 4 do artigo III do GATT 1994 e com a obrigação de eliminação geral de restrições quantitativas prevista no n.º 1 do artigo XI do GATT 1994.

Artigo 3.º

Excepções

Todas as excepções previstas no GATT 1994 são aplicáveis, na medida do adequado, às disposições do presente Acordo.

Artigo 4.º

Países Membros em desenvolvimento

Um país Membro em desenvolvimento pode abster-se de aplicar, temporariamente, as medidas previstas no artigo 2.º, na medida em que o artigo XVIII do GATT 1994, a Nota de Entendimento sobre as Disposições Relativas à Balança de Pagamentos do GATT 1994 e a Declaração sobre as Medidas Comerciais Adoptadas para Efeitos da Balança de Pagamentos adoptadas em 28 de Novembro de 1979 (BISD 26S/205-209) permitam que o Membro se desvie das disposições dos artigos III e XI do GATT 1994.

Artigo 5.º

Notificação e medidas transitórias

1 - Os Membros notificarão o Conselho de Comércio de Mercadorias, no prazo de 90 dias a contar da data de entrada em vigor do Acordo sobre a OMC, de todas as TRIM que apliquem e que não sejam conformes com o disposto no presente Acordo. Tais TRIM de aplicação geral ou especial devem ser notificadas, juntamente com as suas principais características (ver nota 1).

2 - Cada Membro deve eliminar todas as TRIM que são notificadas nos termos do n.º 1 no prazo de dois anos a contar da data de entrada em vigor do Acordo sobre a OMC, no caso de um país desenvolvido, cinco anos, no caso de um país em desenvolvimento, ou sete anos, no caso de um país menos desenvolvido.

3 - Mediante pedido, o Conselho de Comércio de Mercadorias pode prorrogar o período de transição para a eliminação das TRIM notificadas nos termos do n.º 1, no que se refere a um país em desenvolvimento, incluindo um país Membro menos desenvolvido, que revele especiais dificuldades na execução das disposições do presente Acordo. Ao considerar esse pedido, o Conselho de Comércio de Mercadorias deve ter em conta as necessidades específicas do Membro em questão nos domínios do desenvolvimento individual, financeiro e comercial.

4 - Durante o período de transição, um Membro não alterará os termos de qualquer TRIM que aplique à data de entrada em vigor do Acordo sobre a OMC, notificada nos termos do n.º 1, de modo a aumentar o seu grau de incompatibilidade com as disposições do artigo 2.º As TRIM introduzidas menos de 180 dias antes da data de entrada em vigor do Acordo sobre a OMC não beneficiarão das medidas de transição previstas no n.º 2.

5 - Sem prejuízo do disposto no artigo 2.º, um Membro, de modo a não colocar em desvantagem empresas estabelecidas que estão sujeitas a uma TRIM notificada nos termos do n.º 1, pode aplicar, durante o período de transição, a mesma TRIM a um novo investimento, sempre que os produtos desse investimento sejam produtos similares aos produtos das empresas estabelecidas e sempre que seja necessário para evitar a distorção das condições de concorrência entre os novos investimentos e as empresas já estabelecidas. Qualquer TRIM aplicada desta forma a um novo investimento deve ser notificada ao Conselho de Comércio de Mercadorias. Os termos dessa TRIM devem ser equivalentes, no que respeita ao seu efeito sobre a concorrência, aos aplicáveis a empresas já estabelecidas, e deixarão de ser aplicados simultaneamente.

(nota 1) No caso das TRIM aplicadas ao abrigo de poderes discricionários, deve ser notificada cada aplicação específica. As informações cuja divulgação pode prejudicar os interesses comerciais legítimos de certas empresas podem não ser divulgadas.

Artigo 6.º

Transparência

1 - Os Membros reafirmam, no que respeita às TRIM, o seu compromisso de respeitar as obrigações de transparência e de notificação previstas no artigo X do GATT 1994, no compromisso sobre «Notificação» previsto no Entendimento Relativo à Notificação, Consulta, Resolução de Litígios e Fiscalização adoptado em 28 de Novembro de 1979 e na Decisão Ministerial sobre os Processos de Notificação adoptada em 15 de Abril de 1994.

2 - Cada Membro notificará o Secretariado das publicações onde se podem encontrar TRIM, incluindo as TRIM adoptadas por governos regionais e locais e por autoridades dentro do seu território.

3 - Cada Membro mostrar-se-á receptivo a pedidos de informação e de consultas, por parte de outro Membro, sobre qualquer questão resultante do presente Acordo. Em conformidade com o artigo X do GATT 1994, nenhum Membro é obrigado a divulgar informações cuja difusão iria impedir a execução da lei, seria contrária ao interesse público ou prejudicaria os interesses comerciais legítimos de certas empresas, públicas ou privadas.

Artigo 7.º

Comité das Medidas de Investimento Relacionadas com o Comércio

1 - Será criado um Comité das Medidas de Investimento Relacionadas com o Comércio, de que poderão fazer parte todos os Membros (referido adiante como o «Comité»). O Comité elegerá o seu presidente e vice-presidente e reunir-se-á pelo menos uma vez por ano, ou sempre que um Membro o requeira.

2 - O Comité terá as atribuições que lhe forem conferidas pelo Conselho de Comércio de Mercadorias e permitirá aos Membros consultarem-se sobre quaisquer questões relacionadas com o funcionamento e a execução do presente Acordo.

3 - O Comité fiscalizará o funcionamento e a execução do presente Acordo e apresentará relatórios de actividades anuais ao Conselho de Comércio de Mercadorias.

Artigo 8.º

Consultas e resolução de litígios

São aplicáveis às consultas e à resolução de diferendos no âmbito do presente Acordo, as disposições dos artigos XXII e XXIII do GATT 1994, tal como definidas e aplicadas pelo Memorando de Entendimento sobre a Resolução de Litígios.

Artigo 9.º

Revisão pelo Conselho de Comércio de Mercadorias

O mais tardar cinco anos após a entrada em vigor do Acordo sobre a OMC, o Conselho de Comércio de Mercadorias procederá à revisão do funcionamento do presente Acordo e, se for caso disso, proporá à Conferência Ministerial alterações ao presente texto. Durante a revisão, o Conselho de Comércio de Mercadorias considerará a necessidade de complementar o Acordo com disposições sobre política de investimentos e de concorrência.

ANEXO

LISTA EXEMPLIFICATIVA

1 - Nas TRIM que são incompatíveis com a obrigação de tratamento nacional prevista no n.º 4 do artigo III do GATT 1994 incluem-se as que são obrigatórias ou exequíveis nos termos das disposições legislativas ou administrativas nacionais, ou cujo cumprimento é necessário para que se possa obter uma vantagem, e que requeiram:

a) A aquisição ou utilização por uma empresa de produtos de origem nacional ou de qualquer fonte doméstica, tanto especificados em termos de certos produtos específicos, em termos de volume ou de valor, como em termos de uma proporção do volume ou do valor da sua produção local; ou

b) Que as aquisições ou utilização por uma empresa de produtos importados esteja limitada a um montante relacionado com o volume ou com o valor dos produtos locais que exporta.

2 - As TRIM que são incompatíveis com a obrigação de eliminação geral de restrições quantitativas prevista no n.º 1 do artigo XI do GATT 1994 incluem as que são obrigatórias ou aplicáveis nos termos das disposições legislativas ou administrativas nacionais, ou cujo cumprimento é necessário para obter uma vantagem, e que restrinjam:

a) A importação por uma empresa de produtos utilizados na sua produção local, ou relacionados com a mesma, geralmente ou num montante relacionado com o volume ou valor da produção local que exporta;

b) A importação por uma empresa de produtos utilizados na produção local, ou relacionados com a mesma, através de restrições do seu acesso a divisas num montante relacionado com as entradas de divisas atribuíveis a essa empresa; ou

c) A exportação ou venda para exportação, por uma empresa, de produtos, tanto especificados em termos de certos produtos, como em termos de volume ou valor, ou em termos de proporção de volume ou valor da sua produção local.

ACORDO SOBRE A APLICAÇÃO DO ARTIGO VI DO ACORDO GERAL SOBRE PAUTAS ADUANEIRAS E COMÉRCIO DE 1994.

Os Membros acordam no seguinte:

PARTE I

Artigo 1.º

Princípios

Uma medida antidumping só será aplicada nas condições previstas no artigo VI do GATT 1994 e na sequência de inquéritos iniciados (ver nota 1) e conduzidos em conformidade com as disposições do presente Acordo. As disposições que se seguem regem a aplicação do artigo VI do GATT 1994 sempre que sejam tomadas medidas no âmbito de uma legislação ou regulamentação antidumping.

(nota 1) Pelo termo «iniciado» tal como utilizado no presente Acordo entende-se o trâmite processual através do qual um Membro inicia formalmente um inquérito nos termos do artigo 5.º

Artigo 2.º

Determinação de dumping

2.1 - Para efeitos do presente Acordo, considera-se que um produto está a ser objecto de dumping, isto é, introduzido no mercado de outro país a um preço inferior ao seu valor normal, se o preço de exportação do produto exportado de um país para outro for inferior ao preço comparável do produto similar destinado ao consumo no país de exportação, no decurso de operações comerciais normais.

2.2 - Quando não forem efectuadas vendas do produto similar no mercado interno do país exportador no decurso de operações comerciais normais ou quando tais vendas não permitirem uma comparação razoável, em virtude de uma situação especial do mercado ou do baixo volume das vendas no mercado interno do país de exportação (ver nota 2), a margem de dumping será determinada mediante comparação com um preço comparável do produto similar exportado para um país terceiro adequado, desde que esse preço seja representativo, ou com o custo de produção no país de origem, acrescido de um montante razoável para os encargos de venda, despesas administrativas e outros encargos gerais, bem como para os lucros.

2.2.1 - As vendas do produto similar no mercado interno do país exportador ou as vendas a um país terceiro a preços inferiores aos custos unitários de produção (fixos e variáveis), acrescidos dos encargos de venda, despesas administrativas e outros encargos gerais podem ser consideradas como não tendo sido efectuadas no decurso de operações normais em virtude do preço, podendo não ser tidas em conta na determinação do valor normal apenas se as autoridades (ver nota 3) determinarem que essas vendas ocorrem durante um período prolongado (ver nota 4), em quantidades significativas (ver nota 5) e a preços que não permitam cobrir todos os custos dentro de um prazo razoável. Se os preços que são inferiores aos custos unitários aquando da venda forem superiores aos custos unitários médios ponderados relativos ao período de inquérito, considerar-se-á que esses preços permitem cobrir os custos num prazo razoável.

2.2.1.1 - Para efeitos do n.º 2, os custos serão normalmente calculados com base nos registos do exportador ou do produtor submetido a inquérito, na condição de esses registos estarem em conformidade com os princípios contabilísticos geralmente aceites do país exportador e terem devidamente em conta os custos associados à produção e à venda do produto considerado. As autoridades tomarão em consideração todos os elementos de prova disponíveis relativos à adequada repartição dos custos, incluindo os que lhes são comunicados pelo exportador ou produtor durante o período de inquérito, na condição de este tipo de repartição ter sido tradicionalmente utilizada pelo exportador ou produtor, em especial no que se refere à determinação dos períodos adequados de amortização e depreciação e aos ajustamentos relativos às despesas de capital e a outros custos de desenvolvimento. A menos que já tenham sido tomados em consideração na repartição prevista no presente ponto, os custos serão devidamente ajustados de modo a ter em conta os elementos não recorrentes dos custos que beneficiem a futura e ou a actual produção ou as circunstâncias em que os custos foram afectados por operações de lançamento de uma produção durante o período de inquérito (ver nota 6).

(nota 2) As vendas do produto similar destinado ao consumo no mercado interno do país de exportação serão normalmente consideradas uma quantidade suficiente para a determinação do valor normal se representarem 5% ou mais das vendas do produto considerado ao Membro importador, sendo, no entanto, aceitável uma percentagem inferior sempre que existam elementos de prova de que esta representa um volume de vendas internas suficiente para permitir uma comparação válida.

(nota 3) No presente Acordo entende-se por «autoridades» as autoridades de um nível superior adequado.

(nota 4) Este período prolongado deveria ser normalmente de um ano e nunca inferior a seis meses.

(nota 5) As vendas a preços inferiores aos custos unitários são efectuadas em quantidades significativas quando as autoridades estabelecem que o preço de venda médio ponderado das transacções tomadas em consideração na determinação do valor normal é inferior aos custos unitários médios ponderados ou que o volume das vendas a preços inferiores aos custos unitários representa no mínimo 20% do volume vendido nas transacções tomadas em consideração na determinação do valor normal.

(nota 6) O ajustamento efectuado para este tipo de operações terá em conta os custos no final do período de lançamento ou, no caso de este período se prolongar para além do período de inquérito, os custos mais recentes que as autoridades possam razoavelmente tomar em consideração durante o período de inquérito.

2.2.2 - Para efeitos do n.º 2, os montantes correspondentes aos encargos de venda, às despesas administrativas e a outros encargos gerais, bem como aos lucros, deverão basear-se em dados concretos relativos à produção e às vendas do produto similar no decurso de operações comerciais normais efectuadas pelo exportador ou produtor sujeito a inquérito. Sempre que não for possível determinar estes montantes deste modo, serão determinados com base no seguinte:

i) Os montantes efectivamente suportados e realizados pelo exportador ou produtor em questão no que respeita à produção e às vendas no mercado interno do país de origem da mesma categoria geral de produtos;

ii) A média ponderada dos montantes efectivamente suportados e realizados por outros exportadores ou produtores objecto de inquérito no que respeita à produção e às vendas do produto similar no mercado interno do país de origem;

iii) Em qualquer outro método razoável, desde que o montante correspondente aos lucros determinado deste modo não exceda o lucro normalmente realizado por outros exportadores ou produtores sobre as vendas de produtos da mesma categoria geral no mercado interno do país de origem.

2.3 - Nos casos em que não exista um preço de exportação ou em que as autoridades considerem que o preço de exportação não é fiável, em virtude da existência de uma associação ou de um acordo de compensação entre o exportador e o importador ou um terceiro, o preço de exportação pode ser calculado com base no preço a que os produtos importados foram pela primeira vez revendidos a um comprador independente, ou no caso de os produtos não serem revendidos a um comprador independente ou não serem revendidos no estado em que foram importados, numa base razoável a determinar pelas autoridades.

2.4 - Proceder-se-á a uma comparação equitativa entre o preço de exportação e o valor normal. Esta comparação será feita no mesmo estádio comercial, normalmente no estádio à saída da fábrica, e relativamente a vendas efectuadas em datas tão próximas quanto possível. Serão devidamente tomadas em consideração, em função das suas particularidades, as diferenças que afectam a comparabilidade dos preços, incluindo diferenças nas condições de venda, na tributação, nos estádios comerciais, nas quantidades, nas características físicas e quaisquer outras diferenças que comprovadamente afectem a comparabilidade dos preços (ver nota 7). Nos casos previstos no n.º 3 deveriam igualmente ser efectuados ajustamentos para contemplar os custos incorridos entre a importação e a revenda, incluindo direitos e impostos, bem como os lucros auferidos. Se nestes casos a comparabilidade dos preços tiver sido afectada, as autoridades determinarão o valor normal num estádio comercial equivalente ao estádio comercial do preço de exportação calculado ou farão os ajustamentos previstos no presente número. As autoridades indicarão às partes em questão quais as informações que são necessárias para assegurar uma comparação equitativa e não imporão a essas partes um ónus da prova desmesurado.

2.4.1 - Quando a comparação efectuada em conformidade com o n.º 4 implicar uma conversão de moedas, essa conversão será efectuada utilizando a taxa de câmbio em vigor à data da venda (ver nota 8), desde que seja utilizada a taxa de câmbio praticada na venda a termo quando a venda de moeda estrangeira nos mercados a termo esteja directamente ligada à exportação em causa. As flutuações das taxas de câmbio não serão tomadas em consideração, e, no decurso de um inquérito, as autoridades concederão aos exportadores pelo menos 60 dias para ajustarem os seus preços de exportação a fim de ter em conta as flutuações significativas registadas durante o período de inquérito.

2.4.2 - Sob reserva das disposições que regulam a comparação equitativa enunciada no n.º 4, a existência de margens de dumping durante o período de inquérito será normalmente estabelecida com base numa comparação entre um valor normal médio ponderado e uma média ponderada dos preços de todas as transacções de exportação comparáveis ou numa comparação do valor normal e dos preços de exportação numa base transacção a transacção. Um valor normal determinado com base numa média ponderada poderá ser comparado aos preços de transacções de exportação, consideradas individualmente, caso as autoridades constatem que existe uma configuração dos preços de exportação que difere de forma significativa consoante o comprador, a região ou o período e caso seja dada uma explicação da razão pela qual essas diferenças não podem ser tomadas em devida consideração quando se recorre a uma comparação entre as médias ponderadas ou entre as transacções.

(nota 7) Entende-se que alguns dos factores acima mencionados podem sobrepor-se, cabendo às autoridades assegurar a não duplicação de ajustamentos já efectuados a título desta disposição.

(nota 8) Normalmente, a data de venda deveria ser a data do contrato, da nota de encomenda, da confirmação da encomenda ou da factura, consoante o documento que estabelece as condições efectivas de venda.

2.5 - Nos casos em que os produtos não são importados directamente do país de origem mas exportados para o Membro importador a partir de um país intermédio, o preço a que os produtos são vendidos a partir do país de exportação para o Membro importador será normalmente comparado com o preço comparável no país de exportação. No entanto, poderá ser efectuada a comparação com o preço no país de origem se, por exemplo, os produtos transitarem simplesmente pelo país de exportação, se não forem produzidos no país de exportação ou se não existir preço comparável para esses produtos no país de exportação.

2.6 - No presente Acordo, pela expressão «produto similar» (like product) entende-se um produto idêntico, isto é, semelhante em todos os aspectos ao produto considerado ou, na ausência de tal produto, um outro produto que, embora não seja semelhante em todos os aspectos, apresente características muito idênticas às do produto considerado.

2.7 - O presente artigo aplica-se sem prejuízo do disposto na Segunda Disposição Adicional Relativa ao N.º 1 do Artigo VI que figura no Anexo I do Acordo do GATT de 1994.

Artigo 3.º

Determinação da existência de prejuízo (ver nota 9)

3.1 - A determinação da existência de um prejuízo, para efeitos do artigo VI do GATT de 1994, deve basear-se em elementos de prova positivos e incluir um exame objectivo a) do volume das importações objecto de dumping e do seu efeito nos preços dos produtos similares no mercado interno e b) da incidência dessas importações sobre os produtores nacionais desses produtos.

3.2 - Relativamente ao volume das importações objecto de dumping, as autoridades responsáveis pelo inquérito examinarão se houve um aumento importante das importações objecto de dumping, quer em termos absolutos quer em termos de produção ou do consumo no Membro importador. Relativamente ao efeito sobre os preços das importações objecto de dumping, as autoridades responsáveis pelo inquérito examinarão se houve uma subcotação importante dos preços provocada pelas importações objecto de dumping em relação aos preços de um produto similar de um Membro importador ou se, por outro meio, essas importações tiveram como efeito depreciar consideravelmente os preços ou impedir aumentos significativos que, de outro modo, teriam ocorrido. Nenhum destes elementos, considerados isoladamente ou em conjunto, proporcionará necessariamente uma orientação decisiva.

3.3 - Quando as importações de um produto proveniente de mais de um país são simultaneamente objecto de inquéritos antidumping, as autoridades responsáveis pelos inquéritos apenas poderão proceder a uma avaliação cumulativa dos efeitos dessas importações se determinarem a) que a margem de dumping estabelecida relativamente às importações de cada país é superior à margem de minimis definida no n.º 8 do artigo 5.º e que o volume de importações de cada país não é negligenciável e b) que se justifica uma avaliação cumulativa dos efeitos das importações tendo em conta as condições de concorrência entre os produtos importados e as condições de concorrência entre os produtos importados e o produto nacional similar.

3.4 - O exame dos efeitos das importações objecto de dumping sobre o ramo de produção nacional em causa incluirá uma avaliação de todos os factores e índices económicos pertinentes com influência na situação desse ramo de produção, nomeadamente diminuição efectiva e potencial das vendas, lucros, produção, parte de mercado, produtividade, rendimento dos investimentos, ou utilização das capacidades; factores que afectam os preços internos; a amplitude da margem de dumping; os efeitos negativos, efectivos e potenciais sobre o cash flow, as existências, o emprego, os salários, o crescimento e a possibilidade de obter capitais ou investimentos. Esta lista não é exaustiva e nenhum destes elementos, considerados isoladamente ou em conjunto, proporcionará orientação decisiva.

3.5 - É necessário demonstrar que, através dos efeitos do dumping, tal como definido nos n.os 2 e 4, as importações objecto de dumping causam prejuízo na acepção do presente Acordo. A demonstração de um nexo de causalidade entre as importações objecto de dumping e o prejuízo ao ramo de produção nacional deverá basear-se numa análise de todos os elementos de prova pertinentes apresentados às autoridades. As autoridades examinarão também todos os factores conhecidos, para além das importações objecto de dumping, que estejam simultaneamente a causar um prejuízo ao ramo de produção nacional, não devendo os prejuízos causados por esses outros factores ser atribuídos às importações objecto de dumping. Os factores que poderão ser relevantes neste caso compreendem, entre outros, o volume e os preços das importações não vendidas a preços de dumping, a contracção da procura ou alterações nos padrões de consumo, práticas comerciais restritivas dos produtores estrangeiros e nacionais e concorrência entre eles, evolução tecnológica, bem como resultados das exportações e produtividade do ramo de produção nacional.

3.6 - O impacte das importações objecto de dumping deverá ser avaliado em relação à produção nacional do produto similar, quando os dados disponíveis permitirem identificar esta produção separadamente, com base em critérios como o processo de produção, as vendas e os lucros dos produtores. Caso não seja possível a identificação dessa produção separadamente, os efeitos das importações objecto de dumping serão avaliados através do exame da produção do grupo ou gama de produtos mais restrito que inclua o produto similar para o qual se possa obter a informação necessária.

3.7 - A determinação de uma ameaça de prejuízo importante basear-se-á em factos e não apenas em alegações, conjecturas ou possibilidades remotas. A alteração das circunstâncias susceptíveis de criarem uma situação em que o dumping causaria prejuízo deve ser claramente prevista e iminente (ver nota 10). Na determinação da existência de uma ameaça de prejuízo importante, as autoridades deveriam tomar em consideração, entre outros, os seguintes factores:

i) Uma taxa de crescimento significativa das importações objecto de dumping no mercado interno, indiciando a probabilidade de um aumento substancial das importações;

ii) Uma capacidade suficiente e livremente disponível do exportador ou aumento iminente e considerável da capacidade do exportador, indiciando a probabilidade de um aumento substancial das exportações objecto de dumping para o mercado do Membro importador, tendo em conta a disponibilidade de outros mercados de exportação susceptíveis de absorver quaisquer exportações suplementares;

iii) A possibilidade de as importações se efectuarem a preços que terão repercussões significativas sobre os preços internos, no sentido da sua depreciação ou contenção, e probabilidade de essas importações conduzirem a um crescimento da procura de novas importações; e

iv) As existências do produto objecto de inquérito.

Nenhum destes factores pode por si só proporcionar necessariamente uma orientação decisiva, mas a totalidade dos factores considerados deve permitir concluir que estão iminentes outras exportações objecto de dumping e que, caso não sejam tomadas medidas de defesa, ocorrerá um prejuízo importante.

3.8 - Nos casos em que importações objecto de dumping ameacem causar um prejuízo, a aplicação de medidas antidumping será considerada e decidida cuidadosamente.

(nota 9) Para efeitos do presente Acordo pelo termo «prejuízo» entende-se, salvo indicação em contrário, um prejuízo importante causado a um ramo de produção nacional, uma ameaça de prejuízo importante para um ramo de produção nacional ou um atraso importante na criação de um ramo de produção nacional; o prejuízo será interpretado em conformidade com o disposto no presente artigo.

(nota 10) A título de exemplo, embora não seja o único, quando existam razões suficientes para crer que num futuro próximo se verificará um acréscimo substancial de importações do produto em causa a preços de dumping.

Artigo 4.º

Definição de ramo de produção nacional

4.1 - Para efeitos do presente Acordo, pela expressão «ramo de produção nacional» entende-se o conjunto dos produtores nacionais de produtos similares ou aqueles de entre estes cuja produção conjunta constituir uma proporção importante da produção nacional total desses produtos, excepto:

i) Quando os produtores estão ligados (ver nota 11) aos exportadores ou importadores ou quando são eles próprios importadores do produto alegadamente objecto de dumping, pela expressão «ramo de produção nacional» pode entender-se o resto dos produtores;

ii) Em circunstâncias excepcionais, o território de um Membro pode ser dividido em dois ou mais mercados competitivos, no que respeita à produção em causa, e os produtores no interior de cada mercado podem ser considerados como constituindo um ramo de produção distinto se a) os produtores de tal mercado venderam a totalidade ou quase totalidade da sua produção do produto em causa nesse mercado e b) a procura nesse mercado não for satisfeita de forma substancial pelos produtores do produto em causa estabelecidos noutra parte do território. Em tais circunstâncias, pode verificar-se a existência de prejuízo mesmo que não seja causado prejuízo a uma parte importante do ramo de produção nacional total, desde que se verifique uma concentração de importações objecto de dumping num desses mercados isolados e que, além disso, as importações objecto de dumping causem um prejuízo aos produtores da totalidade ou da quase totalidade da produção no interior desse mercado.

(nota 11) Para efeitos do presente número, considera-se que os produtores estão ligados aos exportadores ou importadores apenas se: a) um deles controlar directa ou indirectamente o outro; ou b) ambos forem directa ou indirectamente controlados por um terceiro; ou c) ambos controlarem directa ou indirectamente um terceiro, desde que existam razões para acreditar ou suspeitar que o efeito dessa relação é tal que o produtor em causa se comporta de um modo diferente do dos produtores não ligados. Para efeitos do presente número, considera-se que um controla o outro quando o primeiro se encontre de facto ou de direito em posição de exercer sobre o segundo um poder de autoridade ou de orientação.

4.2 - Quando por ramo de produção nacional se entender os produtores de uma determinada zona, isto é, um mercado tal como definido na alínea ii) do n.º 1, apenas serão cobrados direitos antidumping (ver nota 12) sobre os produtos em causa expedidos para essa zona para consumo final. Quando as disposições constitucionais do Membro importador não permitirem a cobrança de direitos antidumping nessas condições, o Membro importador apenas pode cobrar direitos antidumping sem limitações se a) tiver sido dada a possibilidade aos exportadores de cessarem as suas exportações a preços de dumping para a zona em causa ou de prestarem garantias nos termos do artigo 8.º e caso não tenham sido dadas prontamente garantias suficientes a este respeito e b) tais direitos não puderem ser cobrados unicamente sobre os produtos de determinados produtores que abasteçam a zona em questão.

(nota 12) O termo «cobrar», tal como utilizado no presente Acordo, designa a aplicação ou cobrança legal, a título definitivo ou final, de um direito ou imposto.

4.3 - Quando dois ou mais países chegarem, nas condições previstas no n.º 8, alínea a), do artigo XXIV do GATT de 1994, a um grau de integração tal que apresentem características de um único mercado, unificado, o ramo de produção do conjunto da zona de integração será considerado ramo de produção nacional tal como definido no n.º 1.

4.4 - O n.º 6 do artigo 3.º é aplicável ao presente artigo.

Artigo 5.º

Início do processo e inquérito subsequente

5.1 - Sob reserva do disposto no n.º 6, um inquérito que tenha por objectivo determinar a existência, o grau e os efeitos de qualquer alegada prática de dumping será iniciado mediante pedido escrito apresentado por ou em nome do ramo de produção nacional.

5.2 - Um pedido apresentado nos termos do n.º 1 deverá incluir elementos de prova de a) dumping, b) prejuízo na acepção do artigo VI do GATT de 1994, com a interpretação que lhe é dada pelo presente Acordo e c) um nexo de causalidade entre as importações objecto de dumping e o prejuízo alegado. Uma simples afirmação, não sustentada por elementos de prova pertinentes, não pode ser considerada suficiente para satisfazer os requisitos do presente número. O pedido conterá as informações que podem razoavelmente ser do conhecimento do requerente relativas aos seguintes aspectos:

i) Identidade do requerente e descrição do volume e do valor da produção nacional do produto similar pelo requerente. Quando um pedido for apresentado por escrito em nome do ramo de produção nacional, este deverá ser identificado, através de uma lista de todos os produtores nacionais conhecidos do produto similar (ou associações de produtores nacionais do produto similar) e, na medida do possível, de uma descrição do volume e do valor da produção nacional do produto similar representada por estes produtores;

ii) Uma descrição completa do produto alegadamente objecto de dumping, os nomes do ou dos países de origem ou de exportação em causa, a identidade de cada exportador ou produtor estrangeiro conhecido e uma lista das pessoas conhecidas como importando o produto em questão;

iii) Informações sobre os preços a que o produto em questão é vendido quando destinado ao consumo nos mercados internos do ou dos países de origem ou de exportação (ou, se for caso disso, informações sobre os preços a que o produto é vendido a partir do ou dos países de origem ou de exportação a um país ou países terceiros ou sobre o valor construído do produto) e informações sobre os preços de exportação ou, se for caso disso, sobre os preços a que o produto é revendido pela primeira vez a um comprador independente no território do Membro importador;

iv) Informações sobre a evolução do volume das importações alegadamente objecto de dumping, os efeitos destas importações sobre os preços do produto similar no mercado interno e o consequente impacte das importações sobre o ramo de produção nacional, comprovado por elementos e índices pertinentes que influenciam a situação do ramo de produção nacional, tais como os enumerados nos n.os 2 e 4 do artigo 3.º

5.3 - As autoridades examinarão a exactidão e a pertinência dos elementos de prova apresentados no pedido para determinarem se existem ou não elementos de prova suficientes que justifiquem o início de um inquérito.

5.4 - Apenas será iniciado um inquérito nos termos do n.º 1 se as autoridades determinarem, com base num exame do grau de apoio ou de oposição ao pedido apresentado (ver nota 13) pelos produtores nacionais do produto similar, que o pedido foi apresentado por ou em nome do ramo de produção nacional (ver nota 14). Considera-se que o pedido foi efectuado «por ou em nome do ramo de produção nacional» se tiver sido apoiado pelos produtores nacionais cuja produção conjunta represente mais de 50% da produção total do produto similar produzido pela parte do ramo de produção nacional que expressou o seu apoio ou a sua oposição ao pedido. Contudo, não será iniciado qualquer inquérito quando os produtores nacionais que apoiam expressamente o pedido representem menos de 25% da produção total do produto similar produzido pelo ramo de produção nacional.

(nota 13) No caso de ramos de produção fragmentados que envolvam um número excepcionalmente elevado de produtores, as autoridades podem determinar em que medida existe apoio ou oposição recorrendo a técnicas de amostragem estatisticamente válidas.

(nota 14) Os Membros têm conhecimento de que no território de alguns Membros os assalariados dos produtores nacionais do produto similar ou os representantes desses assalariados podem apresentar-se ou apoiar um pedido de inquérito nos termos do n.º 1.

5.5 - As autoridades evitarão tornar público o pedido de início de um inquérito, excepto se tiver sido tomada a decisão de iniciar um inquérito. Contudo, após recepção de um pedido devidamente documentado e antes de proceder ao início de um inquérito, as autoridades notificarão o Governo do Membro exportador em causa.

5.6 - Se, em circunstâncias especiais, as autoridades em causa decidirem iniciar um inquérito sem que lhes tenha sido apresentado um pedido escrito nesse sentido, por ou em nome de um ramo de produção nacional, apenas o farão se dispuserem de elementos de prova de dumping, de prejuízo e de um nexo de causalidade suficientes, tal como indicado no n.º 2, para justificar o início de um inquérito.

5.7 - Os elementos de prova relativos à existência de dumping e de prejuízo serão examinados simultaneamente a) para decidir se se deve ou não dar início a um inquérito e b) em seguida, no decurso do inquérito, a contar de uma data que não será posterior ao primeiro dia em que, em conformidade com as disposições do presente Acordo, podem ser aplicadas medidas provisórias.

5.8 - Um pedido apresentado nos termos do n.º 1 será rejeitado e um inquérito encerrado o mais rapidamente possível, a partir do momento em que as autoridades em causa estiverem convencidas de que não existem elementos de provas suficientes de dumping ou de prejuízo que justifiquem a continuação do processo. O encerramento do inquérito será imediato nos casos em que as autoridades determinarem que a margem de dumping é de minimis ou que quer o volume das importações objecto de dumping, efectivas ou potenciais quer o prejuízo são negligenciáveis. A margem de dumping será considerada de minimis se for inferior a 2%, expressa em percentagem do preço de exportação. O volume das importações objecto de dumping será normalmente considerado negligenciável se se verificar que as importações objecto de dumping provenientes de um determinado país representam menos de 3% das importações do produto similar no Membro importador, excepto no caso de países que individualmente representam menos de 3% das importações do produto similar no Membro importador representarem em conjunto mais de 7% das importações do produto similar no Membro importador.

5.9 - Um processo antidumping não obsta ao processo de desalfandegamento.

5.10 - Salvo em circunstâncias especiais, os inquéritos devem ser concluídos no prazo de um ano a contar da data do seu início e, de qualquer modo, o mais tardar 18 meses após essa data.

Artigo 6.º

Elementos de prova

6.1 - Todas as partes interessadas num inquérito antidumping serão notificadas das informações exigidas pelas autoridades, devendo ser-lhes concedidas amplas oportunidades de apresentarem por escrito todos os elementos de prova que considerarem pertinentes para o inquérito em questão.

6.1.1 - Será concedido um prazo de pelo menos 30 dias aos exportadores ou produtores estrangeiros para responderem aos questionários utilizados num inquérito antidumping (ver nota 15). Qualquer pedido de prorrogação do prazo de 30 dias deve ser tomado em consideração e, se devidamente fundamentado, tal prorrogação deve ser concedida sempre que possível.

6.1.2 - Sob reserva da obrigação de proteger informações confidenciais, os elementos de prova apresentados por escrito por uma parte interessada deverão ser rapidamente postos à disposição das outras partes interessadas no inquérito.

6.1.3 - Imediatamente após o início do inquérito, as autoridades fornecerão aos exportadores conhecidos (ver nota 16) e às autoridades do Membro exportador o texto integral do pedido apresentado por escrito nos termos do n.º 1 do artigo 5.º e colocá-lo-ão à disposição das outras partes interessadas que o solicitarem. Será tida devidamente em consideração a obrigação de proteger as informações confidenciais tal como previsto no n.º 5.

(nota 15) Regra geral, o prazo imposto aos exportadores iniciar-se-á na data da recepção do questionário que, para o efeito, se considerará ter sido recebido uma semana após a data em que foi enviado ao interessado ou transmitido ao representante diplomático adequado do Membro exportador ou, no caso de um território aduaneiro distinto, Membro da OMC, ao representante oficial do território de exportação.

(nota 16) Entende-se que, nos casos em que o número de exportadores envolvidos é especialmente elevado, o texto integral do pedido escrito apenas deve ser fornecido às autoridades do Membro exportador ou à associação profissional em causa.

6.2 - Durante o inquérito antidumping todas as partes interessadas terão amplas possibilidade de defender os seus interesses. Para o efeito, as autoridades concederão a todas as partes envolvidas, mediante pedido, a oportunidade de se encontrarem com as partes que tenham interesses contrários, para que possam ser apresentados pontos de vista diferentes e proposta uma contra-argumentação. Ao conceder-lhes tal possibilidade deve ter-se em consideração a necessidade de se manter o carácter confidencial das informações e a conveniência das partes. Nenhuma parte será obrigada a assistir a uma reunião e a ausência de uma parte não poderá prejudicá-la no processo. As partes interessadas terão também o direito, mediante justificação, de apresentarem outras informações oralmente.

6.3 - As informações prestadas oralmente nos termos do n.º 2 apenas serão consideradas pelas autoridades na medida em que forem posteriormente reproduzidas por escrito e postas à disposição das outras partes interessadas, tal como previsto no ponto 1.2.

6.4 - Sempre que possível, as autoridades concederão oportunamente a todas as partes interessadas a possibilidade de tomarem conhecimento de todas as informações relevantes para a apresentação dos seus processos, que não sejam confidenciais na acepção do n.º 5 e que as autoridades utilizem num inquérito antidumping, bem como de prepararem a sua argumentação com base nestas informações.

6.5 - Qualquer informação de carácter confidencial (por exemplo, sempre que a sua divulgação possa favorecer de forma significativa um concorrente ou ter efeitos desfavoráveis para a pessoa que forneceu as informações ou para aquela junto da qual as obteve) ou prestada a título confidencial pelas partes num inquérito será, se devidamente justificado, tratada como tal pelas autoridades. Essas informações não serão divulgadas sem a autorização expressa da parte que as presta (ver nota 17).

6.5.1 - As autoridades solicitarão às partes interessadas que prestam informações confidenciais que lhes sejam facultados resumos não confidenciais. Estes resumos serão suficientemente pormenorizados para permitir compreender de forma razoável o essencial das informações prestadas a título confidencial. Em circunstâncias excepcionais, as referidas partes podem indicar que essas informações não são susceptíveis de serem resumidas, devendo, neste caso, ser explicadas as razões por que não pode ser fornecido um resumo.

6.5.2 - Caso considerem que não se justifica um pedido de tratamento confidencial e caso a pessoa que forneceu as informações não queira torná-las públicas ou autorizar a sua divulgação, em termos gerais ou sob a forma de resumo, as autoridades podem ignorar as informações em questão, a menos que se possa provar de forma convincente, através de fontes adequadas, que as informações são correctas (ver nota 18).

(nota 17) Os Membros têm conhecimento de que no território de alguns Membros pode ser exigida uma divulgação através de providência cautelar redigida em termos muito precisos.

(nota 18) Os Membros acordam que os pedidos de tratamento confidencial não devem ser rejeitados de forma arbitrária.

6.6 - Excepto nas circunstâncias previstas no n.º 8, do decurso do inquérito as autoridades verificarão a exactidão das informações prestadas pelas partes interessadas e sobre as quais se baseiam as suas conclusões.

6.7 - Se necessário, as autoridades podem realizar inquéritos no território de outros Membros a fim de verificarem as informações prestadas ou de obterem informações complementares, desde que para tal tenham o acordo das empresas envolvidas e notifiquem os representantes do Governo do Membro em causa, na condição de este não levantar objecções. Os procedimentos descritos no Anexo I são aplicáveis aos inquéritos realizados no território de outros Membros. Sob reserva da obrigação de proteger as informações confidenciais, as autoridades facultarão os resultados de todos os inquéritos efectuados ou permitirão a sua divulgação às empresas a que estes digam respeito, em conformidade com o n.º 9, podendo colocar esses resultados à disposição dos requerentes.

6.8 - Nos casos em que uma parte interessada negue o acesso às informações necessárias, não as comunique num prazo razoável ou levante obstáculos significativos ao inquérito, poderão ser estabelecidas determinações preliminares e finais, positivas ou negativas, com base nos factos disponíveis. Serão observadas as disposições do Anexo II na aplicação do presente número.

6.9 - Antes de estabelecer uma determinação final, as autoridades informarão todas as partes interessadas dos factos essenciais examinados com base nos quais decidirão aplicar ou não medidas definitivas. A divulgação das referidas informações deverá ocorrer a tempo de as partes defenderem os seus interesses.

6.10 - Regra geral, as autoridades determinarão uma margem de dumping para cada exportador conhecido ou produtor em causa do produto objecto de inquérito. Nos casos em que o número de exportadores, produtores, importadores ou tipos de produtos envolvidos for de tal modo elevado que torne tal determinação inviável, as autoridades podem limitar o seu exame quer a um número razoável de partes interessadas ou de produtos, recorrendo a amostras estatisticamente válidas, com base nas informações de que disponham aquando da selecção, quer à percentagem mais elevada do volume das exportações provenientes do país em questão que pode razoavelmente ser objecto de um inquérito.

6.10.1 - Qualquer selecção de exportadores, produtores, importadores ou tipos de produtos, nos termos do presente número, deverá ser efectuada de preferência em consulta e com o consentimento dos exportadores, produtores ou importadores em causa.

6.10.2 - Nos casos em que as autoridades tenham limitado o seu exame, tal como previsto no presente número, determinarão, ainda assim, uma margem de dumping para cada exportador ou produtor não seleccionado inicialmente e que apresente as informações necessárias a tempo de serem tomadas em consideração durante o inquérito, excepto quando o número de exportadores ou produtores for de tal modo elevado que os exames individuais compliquem inutilmente o trabalho das autoridades e as impeçam de concluir o inquérito no prazo previsto. As respostas voluntárias não serão desencorajadas.

6.11 - Para efeitos do presente Acordo, as «partes interessadas» serão:

i) Um exportador ou produtor estrangeiro ou o importador de um produto objecto de inquérito, ou uma associação comercial ou industrial cuja maioria dos membros são produtores, exportadores ou importadores do referido produto;

ii) O Governo do Membro exportador; e

iii) Um produtor do produto similar no Membro importador ou uma associação comercial ou industrial cuja maioria dos membros produz o produto similar no território do Membro importador.

Esta lista não obsta a que os Membros permitam às partes nacionais ou estrangeiras não mencionadas acima serem consideradas partes interessadas.

6.12 - As autoridades concederão aos utilizadores industriais do produto sob inquérito e às organizações de consumidores representativas, nos casos em que o produto é vendido a retalho correntemente, a possibilidade de fornecerem informações pertinentes para o inquérito, no que respeita ao dumping, ao prejuízo e ao nexo de causalidade.

6.13 - As autoridades tomarão devidamente em consideração as dificuldades que as partes interessadas poderão sentir, em especial as pequenas empresas, para comunicar informações solicitadas, proporcionando-lhes todo o apoio possível.

6.14 - Os procedimentos estabelecidos acima não têm por objectivo impedir as autoridades de um Membro de agirem rapidamente no que se refere a iniciar um inquérito, chegar a determinações preliminares ou finais, positivas ou negativas, ou aplicar medidas provisórias ou finais, em conformidade com as disposições pertinentes do presente Acordo.

Artigo 7.º

Medidas provisórias

7.1 - Apenas podem ser aplicadas medidas provisórias caso:

i) Tenha sido iniciado um inquérito em conformidade com o disposto no artigo 5.º, tenha sido publicado um aviso para o efeito e as partes interessadas tenham tido a possibilidade de prestar informações e apresentar observações;

ii) Tenha sido estabelecida uma determinação preliminar positiva de dumping e de um consequente prejuízo a um ramo de produção nacional; e

iii) As autoridades em causa considerem tais medidas necessárias para impedir um prejuízo durante o inquérito.

7.2 - As medidas provisórias poderão assumir a forma de um direito provisório ou, de preferência, de uma garantia - através de depósitos em numerário ou de caução - equivalente ao montante do direito antidumping calculado a título provisório, que não será superior à margem de dumping provisoriamente calculada. A suspensão da determinação do valor aduaneiro constitui uma medida provisória adequada, desde que o direito normal e o montante calculado do direito antidumping sejam indicados e a suspensão da determinação esteja submetida às mesmas condições que as outras medidas provisórias.

7.3 - Só serão aplicadas medidas provisórias 60 dias após a data de início do inquérito.

7.4 - A aplicação de medidas provisórias limitar-se-á a um período tão curto quanto possível, não superior a quatro meses ou, por decisão das autoridades competentes, na sequência de pedido apresentado pelos exportadores que representam uma percentagem significativa do comércio em causa, a um período não superior a seis meses. Caso durante um inquérito as autoridades verifiquem que um direito inferior à margem de dumping seria suficiente para eliminar o prejuízo, estes períodos poderiam então ser de seis e nove meses, respectivamente.

7.5 - Na aplicação das medidas provisórias serão observadas as disposições pertinentes do artigo 9.º

Artigo 8.º

Compromissos de preços

8.1 - Os processos podem (ver nota 19) ser suspensos ou encerrados sem a aplicação de medidas provisórias ou de direitos antidumping se os exportadores se comprometerem de um modo voluntário e satisfatório a rever os seus preços ou a cessarem as suas exportações a preços de dumping para a zona em questão, de forma que as autoridades considerem que o efeito prejudicial do dumping foi eliminado. Os aumentos de preços no âmbito de tais compromissos não serão superiores ao necessário para eliminar a margem de dumping. É desejável que os aumentos de preços sejam inferiores à margem de dumping caso sejam suficientes para eliminar o prejuízo ao ramo de produção nacional.

(nota 19) O termo «podem» não será interpretado como permitindo simultaneamente a continuação do processo e a aplicação de compromissos de preços, excepto nos casos previstos no n.º 4.

8.2 - Apenas serão pedidos ou aceites compromissos de preços por parte dos exportadores se as autoridades do Membro importador tiverem estabelecido uma determinação preliminar positiva de dumping e de prejuízo causado por esse dumping.

8.3 - Os compromissos oferecidos não serão necessariamente aceites se as autoridades considerarem irrealista a sua aceitação, por exemplo, se o número de exportadores efectivos ou potenciais for muito elevado ou por outras razões, designadamente de política geral. Nesse caso, e sempre que possível, as autoridades explicarão ao exportador as razões que as levaram a considerar inoportuna a aceitação de um compromisso e, na medida do possível, darão ao exportador a possibilidade de apresentar observações a este propósito.

8.4 - Mesmo que um compromisso seja aceite, o inquérito sobre o dumping e o prejuízo será concluído se o exportador o desejar ou se as autoridades assim o decidirem. Neste caso, se for estabelecida uma determinação negativa de dumping ou de prejuízo, o compromisso caducará automaticamente, salvo nos casos em que tal determinação resulte em grande medida da existência de um compromisso de preços. Em tais casos, as autoridades podem exigir que o compromisso seja mantido durante um período razoável, em conformidade com as disposições do presente Acordo. Na eventualidade de uma determinação positiva de dumping e de prejuízo, o compromisso será mantido de acordo com os seus termos e as disposições do presente Acordo.

8.5 - As autoridades do Membro importador podem sugerir compromissos de preços, mas nenhum exportador será obrigado a subscrevê-los. O facto de os exportadores não oferecerem tais compromissos ou não aceitaram a sugestão para o fazerem não afectará de forma alguma o exame da questão. Contudo, as autoridades têm liberdade para decidir que é mais provável que uma ameaça de prejuízo se concretize se as importações objecto de dumping continuarem.

8.6 - As autoridades de um Membro importador podem pedir a qualquer exportador, do qual tenham aceite um compromisso, que lhes forneça periodicamente informações sobre o cumprimento dos referidos compromissos e que autorize a verificação dos dados pertinentes. Em caso de violação de um compromisso, as autoridades do Membro importador podem tomar medidas de urgência, por força do presente Acordo e em conformidade com as suas disposições, que poderão consistir na aplicação imediata de medidas provisórias, com base nas melhores informações disponíveis. Em tais casos, nos termos do presente Acordo, podem ser cobrados direitos definitivos sobre os produtos introduzidos no consumo, no máximo até 90 dias antes da aplicação destas medidas provisórias, não sendo, contudo, aplicável qualquer medida retroactiva às importações introduzidas antes da violação do compromisso.

Artigo 9.º

Instituição e cobrança de direitos antidumping

9.1 - Incumbe às autoridades do Membro importador a decisão de instituir ou não um direito antidumping nos casos em que estiverem preenchidas todas as condições, bem como a decisão de fixar o montante do direito antidumping a um nível equivalente ou inferior à margem de dumping total. É desejável que a instituição de direitos seja facultativa no território de todos os Membros e que o direito seja inferior à margem se tal for suficiente para eliminar o prejuízo causado ao ramo de produção nacional.

9.2 - Quando um direito antidumping é aplicável a um determinado produto, esse direito será cobrado no montante adequado a cada caso, sem discriminação, sobre as importações do referido produto, qualquer que seja a sua proveniência, caso se tenha verificado que são objecto de dumping e que causam prejuízo, com excepção das importações provenientes de fornecedores dos quais tenham sido aceites compromissos de preços nos termos do presente Acordo. As autoridades darão a conhecer o nome do ou dos fornecedores do produto em causa. Se, no entanto, estiverem envolvidos vários fornecedores de um mesmo país e não for possível dar a conhecer o nome de todos eles, as autoridades podem limitar-se a indicar o nome do país fornecedor em causa. Se estiverem envolvidos vários fornecedores de vários países, as autoridades podem dar a conhecer o nome de todos os fornecedores em causa ou, se tal não for possível, o nome de todos os países fornecedores em causa.

9.3 - O montante do direito antidumping não deve ultrapassar a margem de dumping estabelecida nos termos do artigo 2.º

9.3.1 - Quando o montante do direito antidumping é fixado numa base retrospectiva, o montante final dos direitos antidumping a pagar será determinado o mais rapidamente possível, normalmente num prazo de 12 meses, e de qualquer modo nunca superior a 18 meses, a contar da data de apresentação de um pedido de fixação final do montante do direito antidumping (ver nota 20). Qualquer reembolso será efectuado o mais rapidamente possível e normalmente o mais tardar 90 dias após a determinação do montante final a pagar estabelecida nos termos do presente ponto. De qualquer modo, sempre que um reembolso não for efectuado no prazo de 90 dias, as autoridades fornecerão uma explicação caso lhes seja pedida.

9.3.2 - Quando o montante do direito antidumping é fixado numa base perspectiva, serão tomadas disposições, mediante pedido, para que sejam reembolsados rapidamente os direitos pagos para além da margem de dumping. O reembolso dos direitos pagos para além da margem de dumping efectiva será efectuado num prazo de 12 meses, e, de qualquer modo, nunca superior a 18 meses, a contar da data em que um importador do produto sujeito ao direito antidumping efectuou um pedido de reembolso devidamente acompanhado por elementos de prova. O reembolso autorizado deve normalmente ser efectuado num prazo de 90 dias a contar da data da decisão acima referida.

9.3.3 - Para determinarem se, e em que medida, um reembolso deveria ser efectuado quando o preço de exportação é calculado nos termos do n.º 3 do artigo 2.º, as autoridades deveriam ter em conta qualquer alteração do valor normal, qualquer alteração dos custos incorridos entre a importação e a revenda, bem como qualquer oscilação do preço de revenda que tenha repercussões sensíveis nos preços de venda posteriores, e deveriam calcular o preço de exportação sem deduzir o montante dos direitos antidumping pagos, sempre que sejam apresentados elementos de prova conclusivos a este respeito.

(nota 20) Entende-se que pode não ser possível cumprir os prazos mencionados no presente ponto e no ponto 3.2 sempre que o produto em causa esteja a ser objecto do reexame judicial.

9.4 - Quando as autoridades tiverem limitado o seu exame, em conformidade com a segunda frase do n.º 10 do artigo 6.º, qualquer direito antidumping aplicado a importações de exportadores ou de produtores não incluídos no exame não poderá exceder:

i) A margem de dumping média ponderada estabelecida relativamente aos exportadores ou produtores seleccionados; ou

ii) Sempre que o montante dos direitos antidumping a pagar seja calculado com base num valor normal prospectivo, a diferença entre o valor normal médio ponderado dos exportadores ou produtores seleccionados e os preços de exportação de exportadores ou produtores não examinados individualmente;

desde que as autoridades não tenham em conta, para efeitos do presente número, margens nulas e de minimis e margens estabelecidas nas circunstâncias referidas no n.º 8 do artigo 6.º As autoridades aplicarão direitos ou valores normais individuais às importações de qualquer exportador ou produtor não abrangido pelo exame, que tenha fornecido as informações necessárias durante o inquérito, tal como previsto no ponto 10.2 do artigo 6.º

9.5 - Caso um produto esteja sujeito a direitos antidumping num Membro importador, as autoridades procederão rapidamente a um reexame a fim de determinarem margens de dumping individuais para quaisquer exportadores ou produtores no país exportador em causa que não tenham exportado o produto para o Membro importador durante o período de inquérito, desde que estes exportadores ou produtores possam provar que não estão ligados a qualquer dos exportadores ou produtores no país exportador sujeitos a direitos antidumping sobre o mesmo produto. O reexame será iniciado e realizado através de procedimento acelerado, em relação aos processos de fixação de direitos normais e de reexame no Membro importador. Não serão cobrados quaisquer direitos antidumping sobre importações desses exportadores ou produtores durante o período de reexame. As autoridades podem, contudo, suspender a determinação do valor aduaneiro e/ou pedir garantias que permitam assegurar que, no caso de o reexame determinar a existência de dumping em relação a esses produtores ou exportadores, possam ser cobrados direitos antidumping a título retroactivo a partir da data de início do referido reexame.

Artigo 10.º

Retroactividade

10.1 - Só serão aplicáveis medidas e direitos antidumping provisórios aos produtos que tenham sido introduzidos no consumo após a data de entrada em vigor da decisão tomada nos termos do n.º 1 do artigo 7.º e do n.º 1 do artigo 9.º, respectivamente, sob reserva das excepções previstas no presente artigo.

10.2 - Caso seja efectuada uma determinação final de prejuízo (mas não de uma ameaça de prejuízo nem de um atraso importante na criação de um ramo de produção) ou uma determinação final de uma ameaça de prejuízo, sempre que na ausência de medidas provisórias o efeito das importações objecto de dumping tivesse conduzido a uma determinação de prejuízo, podem ser cobrados direitos antidumping a título retroactivo relativos ao período durante o qual, se tiver sido esse o caso, foram aplicadas medidas provisórias.

10.3 - Caso o direito antidumping definitivo seja superior ao direito provisório ou pago ou a pagar, ou ao montante estimado para efeitos de uma garantia, não será cobrada a diferença. Caso o direito definitivo seja inferior ao direito provisório pago ou a pagar ou ao montante estimado para efeitos de uma garantia, será reembolsada a diferença ou calculado de novo o direito, conforme o caso.

10.4 - Sem prejuízo do disposto no n.º 2, caso tenha sido efectuada uma determinação de ameaça de prejuízo ou de atraso importante (sem que tenha ainda ocorrido prejuízo), um direito antidumping definitivo só pode ser instituído a partir da data da determinação da ameaça de prejuízo ou de atraso importante, sendo restituído qualquer depósito em numerário efectuado durante o período de aplicação das medidas provisórias e rapidamente liberada qualquer caução.

10.5 - Caso uma determinação final seja negativa, qualquer depósito em numerário efectuado durante o período de aplicação das medidas provisórias será restituído e rapidamente liberada qualquer caução.

10.6 - Pode ser cobrado um direito antidumping definitivo sobre produtos que tenham sido introduzidos no consumo no máximo até 90 dias antes da data de aplicação das medidas provisórias, sempre que as autoridades determinarem, relativamente ao produto em causa objecto de dumping:

i) Que existiu no passado um dumping que causou prejuízo ou que o importador tinha, ou deveria ter, conhecimento de que o exportador praticava dumping e que esse dumping causaria prejuízo; e

ii) Que o prejuízo é causado por importações maciças de um produto objecto de dumping, efectuadas num período relativamente curto que, tendo em conta o período e o volume das importações objecto de dumping, bem como outras circunstâncias (tais como uma rápida acumulação de existências do produto importado), é susceptível de comprometer o efeito reparador do direito antidumping definitivo a aplicar, na condição de os importadores em causa terem tido a oportunidade de apresentar as suas observações.

10.7 - As autoridades podem, após o início de um inquérito, tomar todas as medidas necessárias, tais como a suspensão da determinação do valor aduaneiro ou a avaliação do direito, para cobrar direitos antidumping a título retroactivo, tal como previsto no n.º 6, desde que disponham de elementos de prova suficientes de que estão preenchidas as condições previstas no referido número.

10.8 - Não serão cobrados quaisquer direitos a título retroactivo nos termos do n.º 6, relativamente a produtos introduzidos no consumo antes da data de início do inquérito.

Artigo 11.º

Duração e reexame dos direitos antidumping e dos compromissos de preços

11.1 - Um direito antidumping só se manterá em vigor durante o período e na medida necessários à eliminação do dumping que está a causar o prejuízo.

11.2 - Sempre que tal se justifique, as autoridades reexaminarão a necessidade de manter o direito, por sua própria iniciativa ou na condição de ter decorrido um período razoável desde a criação do direito antidumping definitivo, a pedido de qualquer parte interessada que forneça informações concretas que justifiquem a necessidade de um reexame (ver nota 21). As partes interessadas podem pedir às autoridades que analisem se a manutenção do direito é necessária para contrabalançar o dumping, se seria provável que subsistisse ou se reproduzisse o prejuízo caso o direito fosse eliminado ou alterado, ou qualquer destas hipóteses. Se, na sequência de um reexame nos termos do presente número, as autoridades determinarem que já não se justifica o direito antidumping, este será imediatamente suprimido.

11.3 - Não obstante o disposto nos n.os 1 e 2, todos os direitos antidumping definitivos serão suprimidos no máximo cinco anos após a sua instituição (ou, nos termos do n.º 2, a contar da data do reexame mais recente caso este tenha abrangido simultaneamente o dumping e o prejuízo ou nos termos do presente número), a menos que as autoridades determinem, num reexame iniciado antes dessa data, por sua própria iniciativa ou mediante pedido fundamentado apresentado por ou em nome do ramo de produção nacional, num período razoável antes dessa data, que a caducidade do direito é susceptível de conduzir a uma continuação ou reincidência do dumping e do prejuízo (ver nota 22). O direito pode continuar em vigor até serem conhecidos os resultados do reexame.

11.4 - As disposições do artigo 6.º relativas aos elementos de prova e ao processo são aplicáveis a qualquer reexame efectuado nos termos do presente artigo. Qualquer reexame deste tipo será efectuado com rapidez e deverá encontrar-se normalmente concluído no prazo de 12 meses a contar da data do seu início.

11.5 - As disposições do presente artigo são aplicáveis mutatis mutandis aos compromissos de preços aceites nos termos do artigo 8.º

(nota 21) A determinação do montante final dos direitos antidumping a pagar, tal como previsto no n.º 3 do artigo 9.º, não constitui por si só um reexame na aceptação do presente artigo.

(nota 22) Quando o montante do direito antidumping é fixado numa base retrospectiva, a conclusão no âmbito do processo de avaliação mais recente, nos termos do ponto 3.1 do artigo 9.º, de que não deve ser cobrado qualquer direito, não obrigará por si só as autoridades a suprirem o direito definitivo.

Artigo 12.º

Aviso público e explicação das determinações

12.1 - Quando as autoridades estiverem convencidas de que existem elementos de prova suficientes para justificar o início de um inquérito antidumping nos termos do artigo 5.º, o Membro ou Membros cujos produtos serão objecto do inquérito e as outras partes conhecidas como interessadas pelas autoridades que realizam o inquérito serão notificados, sendo publicado o aviso correspondente.

12.1.1 - Um aviso público relativo ao início do inquérito deverá conter, ou facultar através de um relatório separado (ver nota 23), as informações adequadas sobre os seguintes pontos:

i) Nome do país ou países exportadores e produto em causa;

ii) Data de início do inquérito;

iii) Fundamento da alegação de dumping constante do pedido;

iv) Resumo dos factores em que se baseia a alegação de prejuízo;

v) Endereço para o qual as partes interessadas devem enviar as suas observações;

vi) Prazos concedidos às partes interessadas para apresentarem as suas observações.

(nota 23) Sempre que, nos termos do disposto no presente artigo, as autoridades forneçam informações e explicações num relatório separado, assegurarão que o mesmo seja rapidamente colocado à disposição do público.

12.2 - Qualquer determinação preliminar ou final, positiva ou negativa, qualquer decisão de aceitação de um compromisso nos termos do artigo 8.º, bem como a caducidade desse compromisso ou a supressão de um direito antidumping, serão objecto de aviso público. O aviso deverá expor, de forma suficientemente pormenorizada, ou facultar através de um relatório separado, as verificações e conclusões a que se tenha chegado, relativamente a todos os aspectos de facto e de direito considerados importantes pelas autoridades responsáveis pelo inquérito. Todos os avisos e relatórios serão comunicados ao Membro ou aos Membros cujos produtos são objecto da determinação ou do compromisso e às outras partes conhecidas como interessadas.

12.2.1 - Qualquer aviso público relativo à instituição de medidas provisórias deverá fornecer, ou facultar através de um relatório separado, explicações suficientemente pormenorizadas sobre as determinações preliminares relativas ao dumping e ao prejuízo e mencionará as questões de facto e de direito que levaram a que os argumentos fossem aceites ou rejeitados. Tomando em devida consideração a obrigação de proteger as informações confidenciais, os avisos e relatórios conterão as seguintes informações:

i) Os nomes dos fornecedores ou, quando tal não for possível, os nomes dos países fornecedores em causa;

ii) Uma designação do produto suficiente para efeitos aduaneiros;

iii) As margens de dumping estabelecidas e uma explicação completa das razões que levaram a adoptar a metodologia utilizada na determinação e na comparação dos preços de exportação e do valor normal, nos termos do artigo 2.º;

iv) As considerações relevantes para a determinação de prejuízo tal como previsto no artigo 3.º;

v) As principais razões que levaram à determinação.

12.2.2 - Qualquer aviso público sobre a conclusão ou a suspensão de um inquérito no caso de uma determinação positiva que preveja a instituição de um direito definitivo ou a aceitação de um compromisso de preços deverá incluir, ou colocar à disposição através de relatório separado, todas as informações pertinentes sobre as questões de facto e de direito, bem como as razões que levaram à instituição de medidas finais ou à aceitação de um compromisso de preços, tomando em devida consideração a obrigação de proteger informações confidenciais. O aviso ou o relatório facultarão, em especial, as informações descritas no ponto 2.1, bem como os motivos da aceitação ou da rejeição dos argumentos ou alegações pertinentes dos exportadores e dos importadores, indicando ainda o fundamento de qualquer decisão tomada em conformidade com o ponto 10.2 do artigo 6.º

12.2.3 - Qualquer aviso público sobre o encerramento ou a suspensão do inquérito, na sequência da aceitação de um compromisso nos termos do artigo 8.º, incluirá, ou colocará à disposição, através de relatório separado, a parte não confidencial do compromisso.

12.3 - As disposições do presente artigo são aplicáveis mutatis mutandis ao início e à conclusão de reexames efectuados nos termos do artigo 11.º e às decisões de aplicação de direitos retroactivos nos termos do artigo 10.º

Artigo 13.º

Reexame judicial

Cada Membro cuja legislação nacional contenha disposições relativas às medidas antidumping deverá dispor de instâncias ou tribunais judiciais, administrativos ou de arbitragem ou que procedam, entre outras coisas, a um rápido reexame das medidas administrativas relacionadas com as determinações finais e os reexames dessas determinações na acepção do artigo 11.º Tais tribunais ou instâncias serão independentes das autoridades responsáveis pela determinação ou reexame em causa.

Artigo 14.º

Medidas antidumping em nome de um país terceiro

14.1 - Um pedido de medidas antidumping em nome de um país terceiro será apresentado pelas autoridades desse país terceiro.

14.2 - Tal pedido será acompanhado de informações relativas aos preços que demonstrem que as importações estão a ser objecto de dumping e de informações pormenorizadas que demonstrem que o dumping alegado está a causar prejuízo ao ramo de produção nacional em causa no país terceiro. O governo do país terceiro prestará a assistência necessária às autoridades do país importador para que estas possam obter quaisquer informações complementares que considerem necessárias.

14.3 - Na análise do pedido, as autoridades do país importador tomarão em consideração os efeitos do dumping alegado sobre o ramo de produção do país terceiro considerado no seu todo; por outras palavras, o prejuízo não será avaliado unicamente em função dos efeitos do dumping alegado sobre as exportações desse ramo de produção para o país importador ou mesmo sobre as exportações totais desse mesmo ramo.

14.4 - A decisão de prosseguir ou não um processo cabe ao país importador. Caso o país importador decida que está disposto a tomar medidas, cabe-lhe a iniciativa de solicitar a aprovação dessas medidas junto do Conselho do Comércio de Mercadorias.

Artigo 15.º

Países em desenvolvimento Membros

Os países desenvolvidos Membros devem conceder uma atenção especial à situação dos países em desenvolvimento Membros quando estiver em causa a aplicação de medidas antidumping no âmbito do presente Acordo. Antes da aplicação de direitos antidumping serão exploradas as possibilidades de soluções construtivas previstas no presente Acordo, sempre que estiverem em causa interesses essenciais dos países em desenvolvimento Membros.

PARTE II

Artigo 16.º

Comité das Práticas Antidumping

16.1 - É criado um Comité das Práticas Antidumping (a seguir designado o «Comité») composto por representantes de cada um dos Membros. O Comité elegerá o seu presidente e reunir-se-á pelo menos duas vezes por ano, bem como a pedido de qualquer Membro, em conformidade com as disposições pertinentes do presente Acordo. O Comité desempenhará as funções que lhe são conferidas pelo presente Acordo ou pelos Membros e dará aos Membros a possibilidade de procederem a consultas sobre qualquer questão relacionada com o funcionamento do Acordo ou com a prossecução dos seus objectivos. O Secretariado da OMC assegurará o Secretariado do Comité.

16.2 - O Comité pode criar os órgãos auxiliares que considerar adequados.

16.3 - No desempenho das suas funções, o Comité e quaisquer órgãos auxiliares podem consultar qualquer fonte que considerarem adequada e solicitar-lhe informações. Contudo, antes de solicitar informações a uma fonte dependente da jurisdição de um Membro, o Comité ou o órgão auxiliar informará o Membro em causa. Deve ser obtido o consentimento do Membro e de qualquer empresa a consultar.

16.4 - Os Membros apresentarão sem demora um relatório sobre todas as medidas antidumping tomadas, preliminares ou finais. O relatório estará disponível no Secretariado a fim de poder ser verificado por outros Membros. Os Membros apresentarão igualmente relatórios semestrais sobre todas as medidas antidumping tomadas nos seis meses precedentes. Os relatórios semestrais obedecerão a uma fórmula-tipo previamente acordada.

16.5 - Cada Membro notificará ao Comité: a) as autoridades competentes para iniciar e conduzir os inquéritos previstos no artigo 5.º; e b) os seus procedimentos internos que regem o início e a condução dos mesmos.

Artigo 17.º

Consultas e resolução de litígios

17.1 - Salvo disposição em contrário do presente Acordo, o Memorando do Entendimento sobre Resolução de Litígios é aplicável às consultas e à resolução de litígios nos termos do presente Acordo.

17.2 - Cada Membro considerará favoravelmente, concedendo as oportunidades adequadas para consultas, as observações apresentadas por outro Membro relativamente a qualquer questão que diga respeito à aplicação do presente Acordo.

17.3 - Caso um Membro considere que uma vantagem decorrente, directa ou indirectamente, do presente Acordo se encontra anulada ou comprometida ou que a realização de um dos objectivos do Acordo está a ser comprometida por outro Membro ou Membros, pode, mediante pedido escrito, solicitar a realização de consultas com o Membro ou Membros em causa, tendo em vista resolver a questão de forma mutuamente satisfatória. Cada Membro considerará favoravelmente qualquer pedido de consultas apresentado por outro Membro.

17.4 - Caso o Membro que solicitou as consultas em conformidade com o n.º 3 considere que estas não permitiram chegar a uma solução mutuamente acordada e caso tenham sido tomadas medidas definitivas pelas autoridades competentes do Membro importador, no sentido de serem cobrados direitos antidumping definitivos ou aceites compromissos de preços, pode submeter a questão ao Órgão de Resolução de Litígios (ORL). Quando uma medida provisória tiver repercussões significativas e o Membro que solicitou as consultas considerar que a medida tomada é contrária ao disposto no n.º 1 do artigo 7.º do presente Acordo, pode também submeter a questão ao ORL.

17.5 - A pedido da parte queixosa, o ORL constituirá um painel que se encarregará de examinar a questão com base no seguinte:

i) Uma exposição escrita em que o Membro que apresentou o pedido explica de que forma um benefício decorrente, directa ou indirectamente, do presente Acordo foi anulado ou comprometido ou de que forma a concretização dos objectivos do Acordo está ser dificultada; e

ii) Os factos comunicados às autoridades do Membro importador em conformidade com os seus procedimentos internos.

17.6 - Ao examinar a questão referida no n.º 5:

i) O painel determinará, na sua apreciação dos factos, se as autoridades apuraram correctamente os factos e se a sua avaliação foi imparcial e objectiva. Caso o apuramento dos factos tenha sido correcto e a avaliação imparcial e objectiva, esta não será negligenciada mesmo que o painel tenha chegado a uma conclusão diferente;

ii) O painel interpretará as disposições pertinentes do Acordo à luz das regras habituais de interpretação do direito internacional público. Sempre que considerar que uma disposição pertinente do Acordo se presta a mais do que uma interpretação, o painel determinará que a medida tomada pelas autoridades está em conformidade com o Acordo caso assente numa das interpretações possíveis.

17.7 - As informações confidenciais comunicadas ao painel não serão divulgadas sem a autorização formal da pessoa, do organismo ou da autoridade que as tenha fornecido. Sempre que estas informações são pedidas ao painel mas cuja divulgação não está autorizada, será apresentado um resumo não confidencial das informações, autorizado pela pessoa, organismo ou autoridade que as forneceu.

PARTE III

Artigo 18.º

Disposições finais

18.1 - Não podem ser tomadas medidas antidumping específicas contra as exportações de outro Membro, se tal não estiver em conformidade com as disposições do GATT de 1994, tal como interpretadas pelo presente Acordo (ver nota 24).

18.2 - Não podem ser formuladas reservas relativamente às disposições do presente Acordo sem o consentimento dos outros Membros.

18.3 - Sob reserva dos pontos 3.1 e 3.2, as disposições do presente Acordo são aplicáveis aos inquéritos e reexames de medidas existentes, iniciados na sequência de pedidos apresentados na data de entrada em vigor para um Membro do Acordo OMC ou após essa data.

18.3.1 - No que respeita ao cálculo das margens de dumping nos processos de reembolso, nos termos do n.º 3 do artigo 9.º, são aplicáveis as regras utilizadas na determinação ou reexame de dumping mais recente.

18.3.2 - Para efeitos do n.º 3 do artigo 11.º, considera--se que as medidas antidumping existentes foram instituídas o mais tardar na data de entrada em vigor para um Membro do Acordo OMC, excepto nos casos em que a legislação interna de um Membro em vigor nessa data preveja já uma cláusula do tipo previsto na referida disposição.

18.4 - Cada Membro tomará todas as medidas necessárias, de carácter geral ou específico, que assegurem, o mais tardar na data de entrada em vigor do Acordo OMC para este Membro, a conformidade das suas disposições legislativas, regulamentares e procedimentos administrativos com as disposições do presente Acordo, na medida em que possam aplicar-se ao Membro em questão.

18.5 - Cada Membro informará o Comité de qualquer alteração introduzida nas disposições legislativas e regulamentares relacionada com o presente Acordo, bem como na aplicação de tais disposições.

18.6 - O Comité procederá a um exame anual da aplicação e do funcionamento do presente Acordo, tendo em conta os seus objectivos. O Comité informará anualmente o Conselho do Comércio de Mercadorias de qualquer alteração durante o período abrangido pelo exame.

18.7 - Os Anexos do presente Acordo fazem dele parte integrante.

(nota 24) Esta disposição não visa impedir a adopção de medidas adequadas a título de outras disposições pertinentes do GATT de 1994.

ANEXO I

PROCEDIMENTOS A ADOPTAR NOS INQUÉRITOS NO LOCAL REALIZADOS EM CONFORMIDADE COM O N.º 7 DO ARTIGO 6.º

1 - Uma vez iniciado um inquérito, as autoridades do Membro exportador e as empresas conhecidas como interessadas devem ser informadas da intenção de se proceder a inquéritos no local.

2 - Caso em circunstâncias excepcionais se pretenda incluir peritos não governamentais na equipa responsável pelo inquérito, as empresas e as autoridades do Membro exportador devem ser informadas desse facto. Estes peritos não governamentais devem estar sujeitos a sanções efectivas em caso de violação dos requisitos de confidencialidade.

3 - Deve ser prática corrente obter o acordo explícito das empresas em causa do Membro exportador antes de definitivamente estabelecida a data da visita.

4 - Uma vez obtido o acordo das empresas em causa, as autoridades responsáveis pelo inquérito devem notificar às autoridades do Membro exportador os nomes e os endereços das empresas a visitar, bem como as datas acordadas.

5 - As empresas em questão devem ser notificadas da visita com antecedência suficiente.

6 - As visitas destinadas a explicar o questionário só devem ser efectuadas a pedido de uma empresa exportadora. Estas visitas só poderão ser efectuadas se: a) as autoridades do Membro importador notificarem os representantes do Membro em questão; e b) se este último não se opuser.

7 - Dado que o principal objectivo do inquérito no local é verificar as informações recebidas ou completá-las, a sua realização deve ter lugar após a recepção da resposta ao questionário, a menos que a empresa acorde no contrário e o governo do Membro exportador seja informado pelas autoridades responsáveis pelo inquérito da visita antecipada e a ela não se oponha; além disso, deve ser prática corrente, antes da realização da visita, informar as empresas em causa do carácter geral das informações que serão verificadas, bem como de quaisquer outras informações a fornecer, facto que não deveria, contudo, impedir que no próprio local sejam solicitadas informações mais pormenorizadas com base nas já obtidas.

8 - Sempre que possível, seria conveniente que os pedidos de esclarecimentos apresentados pelas autoridades ou pelas empresas dos Membros exportadores, essenciais para o êxito de um inquérito no local, fossem satisfeitos antes de efectuada a visita.

ANEXO II

MELHORES INFORMAÇÕES DISPONÍVEIS PARA EFEITOS DO N.º 8 DO ARTIGO 6.º

1 - Logo que possível após o início do inquérito, as autoridades responsáveis pela sua condução devem indicar de forma pormenorizada quais as informações que a parte interessada deve fornecer e de que modo devem ser estruturadas tais informações na sua resposta. As autoridades devem igualmente assegurar que a parte em questão tenha conhecimento de que, caso as informações não sejam fornecidas num prazo razoável, as autoridades têm o direito de proceder a determinações com base nos factos disponíveis, incluindo os que figuram no pedido de início do inquérito apresentado pelo ramo de produção nacional.

2 - As autoridades podem igualmente solicitar que uma parte interessada utilize para a sua resposta um determinado suporte (por exemplo, banda magnética) ou linguagem informática. Sempre que for efectuado um pedido deste tipo, as autoridades devem ter em consideração se a parte interessada tem condições para responder através desse suporte ou linguagem informática considerados preferíveis e não deve pedir à parte que utilize na sua resposta um sistema informático diferente do seu. As autoridades não devem insistir no pedido de resposta por computador, se a contabilidade da parte interessada não estiver informatizada e se a apresentação das respostas por esse meio implicar uma sobrecarga excessiva para a parte interessada que se traduza em custos e encargos adicionais desnecessários. As autoridades não devem insistir no pedido de resposta através de um determinado suporte ou linguagem informática se a contabilidade da parte interessada não estiver informatizada através do mesmo suporte ou linguagem informática e se a apresentação das respostas pelo meio pedido implicar uma sobrecarga excessiva para a parte interessada, que se traduz em custos e encargos adicionais desnecessários.

3 - Para o estabelecimento das determinações, deveriam ser tomadas em consideração todas as informações susceptíveis de verificação, correctamente apresentadas a fim de poderem ser utilizadas no inquérito sem dificuldades de maior, comunicadas em tempo útil e, se for caso disso, fornecidas através do suporte ou linguagem informática pedidos pelas autoridades. O facto de uma parte não utilizar na sua resposta o suporte ou linguagem informática preferidos não deverá ser considerado como um obstáculo sério ao inquérito, caso as autoridades considerem que estão reunidas as condições enunciadas no n.º 2.

4 - Sempre que as autoridades não estejam em condições de tratar as informações, quando fornecidas através de um determinado suporte (por exemplo, banda magnética), as informações devem ser fornecidas por escrito ou sob qualquer outra forma aceitável para as autoridades.

5 - Ainda que as informações fornecidas não sejam ideais em todos os aspectos, tal facto não deverá constituir motivo para as autoridades as ignorarem, desde que a parte interessada tenha feito o melhor possível dentro das suas possibilidades.

6 - Caso os elementos de prova ou as informações não sejam aceites, a parte que as forneceu deve ser imediatamente informada das razões que levaram à sua rejeição e ter a possibilidade de fornecer explicações complementares num prazo razoável, tomando em devida consideração os prazos fixados para o inquérito. Caso as explicações não sejam consideradas satisfatórias pelas autoridades, as razões da rejeição desses elementos de prova ou das informações devem constar das determinações publicadas.

7 - Caso as autoridades tenham de basear as suas conclusões, incluindo as que dizem respeito ao valor normal, em informações de uma fonte secundária, designadamente informações fornecidas no pedido de início do inquérito, devem actuar com uma certa ponderação. Nesses casos, as autoridades devem, sempre que possível, verificar as informações junto de outras fontes independentes a que tenham acesso, tais como listas de preços publicadas, estatísticas oficiais de importação e estatísticas aduaneiras, e recorrer às informações obtidas durante o inquérito junto de outras partes interessadas. Todavia, é óbvio que, se uma parte interessada não colaborar e, desse modo, não revelar informações pertinentes às autoridades, tal situação poderá conduzir a um resultado menos favorável para essa parte do que se tivesse efectivamente colaborado.

ACORDO SOBRE A APLICAÇÃO DO ARTIGO VII DO ACORDO GERAL SOBRE PAUTAS ADUANEIRAS E COMÉRCIO DE 1994.

Introdução geral

1 - A primeira base para a determinação do valor aduaneiro no âmbito do presente Acordo é o «valor transaccional», tal como definido no artigo 1.º Este artigo deve ser lido em conjunto com o artigo 8.º, que prevê, designadamente, ajustamentos do preço efectivamente pago ou a pagar, quando certos elementos específicos considerados como fazendo parte do valor aduaneiro são suportados pelo comprador mas não são incluídos no preço efectivamente pago ou a pagar pelas mercadorias importadas. O artigo 8.º prevê igualmente a inclusão, no valor transaccional, de certas prestações do comprador a favor do vendedor, sob a forma de mercadorias ou de serviços específicos, de preferência a numerário. Os artigos 2.º a 7.º, inclusive, estabelecem os métodos a utilizar para determinar o valor aduaneiro se essa determinação não puder ser efectuada através da aplicação das disposições do artigo 1.º

2 - Quando o valor aduaneiro não puder ser determinado por aplicação das disposições do artigo 1.º, a administração aduaneira e o importador devem normalmente concertar-se para calcularem a base do valor em conformidade com as disposições do artigo 2.º ou do artigo 3.º Pode suceder, por exemplo, que o importador possua informações respeitantes ao valor aduaneiro de mercadorias importadas idênticas ou similares, de que a administração aduaneira do ponto de importação não disponha directamente. Inversamente, a administração aduaneira pode ter informações relativas ao valor aduaneiro de mercadorias importadas idênticas ou similares a que o importador não tenha facilmente acesso. A consulta entre as duas partes permitirá uma troca de informações, no respeito das obrigações relativas ao segredo comercial, com vista a determinar a base correcta para efeitos do valor aduaneiro.

3 - Os artigos 5.º e 6.º fornecem duas bases para determinação do valor aduaneiro quando este não pode ser estabelecido com base no valor transaccional das mercadorias importadas ou de mercadorias importadas idênticas ou similares. Nos termos do disposto no n.º 1 do artigo 5.º, o valor aduaneiro é determinado com base no preço a que as mercadorias são vendidas, no estado em que são importadas, a um comprador que não está coligado com o vendedor no país de importação. O importador tem igualmente o direito de fazer avaliar, a seu pedido, em aplicação das disposições do artigo 5.º, as mercadorias que sejam objecto de operações de complemento de fabrico ou de transformação depois da importação. Nos termos do disposto no artigo 6.º, o valor aduaneiro é determinado com base no valor calculado. Estes dois métodos apresentam algumas dificuldades e, por essa razão, o importador tem direito, nos termos do artigo 4.º, a escolher a ordem pela qual os dois métodos serão aplicados.

4 - O artigo 7.º define o modo de determinação do valor aduaneiro nos casos em que este não possa ser determinado por aplicação de qualquer dos artigos anteriores.

Os Membros:

Tendo em conta as negociações comerciais multilaterais;

Desejosos de realizar os objectivos do GATT de 1994 e de alcançar vantagens adicionais para o comércio internacional dos países em vias de desenvolvimento;

Reconhecendo a importância das disposições do artigo VII do GATT de 1994 e desejando elaborar regras para a sua aplicação com o objectivo de conseguir a este respeito uma maior uniformidade e segurança;

Reconhecendo a necessidade de um sistema equitativo, uniforme e neutro de determinação do valor aduaneiro das mercadorias que exclua a utilização de valores aduaneiros arbitrários ou fictícios;

Reconhecendo que a base para a determinação do valor aduaneiro das mercadorias deve ser, tanto quanto possível, o valor transaccional das mercadorias a avaliar;

Reconhecendo que o valor aduaneiro deve basear-se em critérios simples e equitativos compatíveis com a prática comercial e que os processos de determinação do valor devem ser de aplicação geral, sem distinção entre fontes de abastecimento;

Reconhecendo que os processos de determinação do valor não devem ser utilizados para combater o dumping;

acordaram no seguinte:

PARTE I

Regras de determinação do valor aduaneiro

Artigo 1.º

1 - O valor aduaneiro das mercadorias importadas será o valor transaccional, isto é, o preço efectivamente pago ou a pagar pelas mercadorias quando são vendidas para exportação com destino ao país de importação, ajustado de acordo com as disposições do artigo 8.º, desde que:

a) Não existam restrições quanto à cessão ou utilização das mercadorias pelo comprador, para além das restrições que:

i) São impostas ou exigidas pela lei ou pelas autoridades públicas do país de importação;

ii) Limitam a zona geográfica na qual as mercadorias podem ser revendidas; ou

iii) Não afectam substancialmente o valor das mercadorias;

b) A venda ou o preço não estejam subordinados a condições ou prestações cujo valor não se possa determinar relativamente às mercadorias a avaliar;

c) Não reverta directa ou indirectamente para o vendedor nenhuma parte do produto de qualquer revenda, cessão ou utilização ulterior das mercadorias pelo comprador, salvo se puder ser efectuado um ajustamento apropriado em conformidade com as disposições do artigo 8.º; e

d) O comprador e o vendedor não estejam coligados ou, se o estiverem, que o valor transaccional seja aceitável para fins aduaneiros nos termos do disposto no n.º 2.

2 - a) Para determinar se o valor transaccional é aceitável para efeitos de aplicação do n.º 1, o facto de o comprador e o vendedor estarem coligados na acepção do artigo 15.º não constitui, em si mesmo, motivo suficiente para considerar o valor transaccional inaceitável. Em tal caso, serão examinadas as circunstâncias próprias da venda e o valor transaccional será aceite desde que essa coligação não tenha influenciado o preço. Se, tendo em conta informações fornecidas pelo importador ou obtidas de outras fontes, a administração aduaneira tiver motivos para considerar que a relação de coligação influenciou o preço, comunicará os seus motivos ao importador e dar-lhe-á uma possibilidade razoável de responder. Se o importador assim o solicitar, os motivos ser-lhe-ão comunicados por escrito.

b) Numa venda entre pessoas coligadas, o valor transaccional será aceite e as mercadorias serão avaliadas em conformidade com o disposto no n.º 1 quando o importador demonstrar que o referido valor está muito próximo de um dos valores a seguir indicados, no mesmo momento ou em momento muito aproximado:

i) Valor transaccional nas vendas a compradores não coligados de mercadorias idênticas ou similares para exportação com destino ao mesmo país de importação;

ii) Valor aduaneiro de mercadorias idênticas ou similares, tal como determinado por aplicação das disposições do artigo 5.º;

iii) Valor aduaneiro de mercadorias idênticas ou similares, tal como determinado por aplicação das disposições do artigo 6.º

Na aplicação dos critérios precedentes, serão devidamente tidas em conta quaisquer diferenças demonstradas entre os níveis comerciais, as quantidades, os elementos enumerados no artigo 8.º e os custos suportados pelo vendedor nas vendas em que este e o comprador não estão coligados, e que o vendedor não suporta nas vendas em que ele e o comprador estão coligados.

c) Os critérios enunciados na alínea b) do n.º 2 destinam--se a ser utilizados por iniciativa do importador e somente para efeitos de comparação. Nos termos do disposto na alínea b) do n.º 2, não podem ser estabelecidos valores de substituição.

Artigo 2.º

1 - a) Se o valor aduaneiro das mercadorias importadas não puder ser determinado por aplicação das disposições do artigo 1.º, o valor aduaneiro será o valor transaccional de mercadorias idênticas, vendidas para exportação com destino ao mesmo país de importação e exportadas no mesmo momento que as mercadorias a avaliar ou em momento muito próximo.

b) Aquando da aplicação do presente artigo, o valor aduaneiro será determinado com recurso ao valor transaccional de mercadorias idênticas, vendidas ao mesmo nível comercial e sensivelmente na mesma quantidade que as mercadorias a avaliar. Na falta de tais vendas, recorrer-se-á ao valor transaccional de mercadorias idênticas, vendidas a um nível comercial diferente e/ou em quantidades diferentes, ajustado para ter em conta diferenças atribuíveis ao nível comercial e/ou à quantidade, contanto que tais ajustamentos, independentemente do facto de implicarem um aumento ou uma diminuição do valor, sejam efectuados com base em elementos de prova que atestem claramente que são razoáveis e exactos.

2 - Quando os custos e as despesas referidos no n.º 2 do artigo 8.º estiverem incluídos no valor transaccional, este valor será ajustado para ter em conta diferenças apreciáveis desses custos e despesas entre as mercadorias importadas e as mercadorias idênticas consideradas, resultantes de diferenças nas distâncias e nos modos de transporte.

3 - Se, aquando da aplicação do presente artigo, for apurado mais de um valor transaccional de mercadorias idênticas, recorrer-se-á ao valor transaccional mais baixo para determinar o valor aduaneiro das mercadorias importadas.

Artigo 3.º

1 - a) Se o valor aduaneiro das mercadorias importadas não puder ser determinado por aplicação das disposições dos artigos 1.º e 2.º, o valor aduaneiro será o valor transaccional de mercadorias similares, vendidas para exportação com destino ao mesmo país de importação e exportadas no mesmo momento que as mercadorias a avaliar ou em momento muito próximo.

b) Aquando da aplicação do presente artigo, o valor aduaneiro será determinado com recurso ao valor transaccional de mercadorias similares, vendidas ao mesmo nível comercial e sensivelmente na mesma quantidade que as mercadorias a avaliar. Na falta de tais vendas, recorrer-se-á ao valor transaccional de mercadorias similares, vendidas a um nível comercial diferente e/ou em quantidades diferentes, ajustado para ter em conta diferenças atribuíveis ao nível comercial e/ou à quantidade, contanto que tais ajustamentos, independentemente do facto de implicarem um aumento ou uma diminuição do valor, sejam efectuados com base em elementos de prova que atestem claramente que são razoáveis e exactos.

2 - Quando os custos e as despesas referidos no n.º 2 do artigo 8.º estiverem incluídos no valor transaccional, este valor será ajustado para ter em conta diferenças apreciáveis desses custos e despesas entre as mercadorias importadas e as mercadorias similares consideradas, resultantes de diferenças nas distâncias e nos modos de transporte.

3 - Se, aquando da aplicação do presente artigo, for apurado mais de um valor transaccional de mercadorias similares, recorrer-se-á ao valor transaccional mais baixo para determinar o valor aduaneiro das mercadorias importadas.

Artigo 4.º

Se o valor aduaneiro das mercadorias importadas não puder ser determinado por aplicação das disposições dos artigos 1.º, 2.º e 3.º, o valor aduaneiro será determinado por aplicação das disposições do artigo 5.º ou, quando o valor aduaneiro não puder ser determinado por aplicação desse artigo, por aplicação das disposições do artigo 6.º; contudo, a pedido do importador, a ordem de aplicação dos artigos 5.º e 6.º pode ser invertida.

Artigo 5.º

1 - a) Se as mercadorias importadas ou mercadorias idênticas ou similares importadas forem vendidas no país de importação no mesmo estado em que foram importadas, o valor aduaneiro das mercadorias importadas, determinado por aplicação das disposições do presente artigo, basear-se-á no preço unitário de venda das mercadorias importadas, ou de mercadorias idênticas ou similares importadas, totalizando a quantidade mais elevada, desde que feitas a pessoas não coligadas com os vendedores, no momento ou em momento muito próximo da importação das mercadorias a avaliar, sob reserva das seguintes deduções:

i) Comissões geralmente pagas ou acordadas, ou margens geralmente praticadas para lucros e despesas gerais relativos às vendas, no país em questão, de mercadorias importadas da mesma natureza ou da mesma espécie;

ii) Despesas habituais de transporte e de seguro, bem como despesas conexas incorridas no país de importação;

iii) Se for caso disso, custos e despesas enumerados no n.º 2 do artigo 8.º; e

iv) Direitos aduaneiros e outras imposições nacionais a pagar no país de importação devido à importação ou à venda das mercadorias.

b) Se nem as mercadorias importadas nem mercadorias idênticas ou similares importadas forem vendidas no momento ou em momento muito próximo da importação das mercadorias a avaliar, o valor aduaneiro basear-se-á, sob reserva das disposições da alínea a) do n.º 1, no preço unitário a que as mercadorias importadas ou mercadorias idênticas ou similares importadas forem vendidas no país de importação, no mesmo estado em que foram importadas, na data mais próxima depois da importação das mercadorias a avaliar, mas antes de 90 dias a contar dessa importação.

2 - Se nem as mercadorias importadas nem mercadorias idênticas ou similares importadas forem vendidas no país de importação no mesmo estado em que foram importadas, o valor aduaneiro basear-se-á, se o importador o solicitar, no preço unitário de venda das mercadorias importadas totalizando a quantidade mais elevada, feitas depois de um complemento de fabrico ou de transformação ulterior a pessoas não coligadas com os vendedores, no país de importação, tendo devidamente em conta o valor acrescentado pelo complemento de fabrico ou pela transformação e as deduções previstas na alínea a) do n.º 1.

Artigo 6.º

1 - O valor aduaneiro das mercadorias importadas, determinado por aplicação das disposições do presente artigo, basear-se-á num valor calculado. O valor calculado será igual à soma:

a) Do custo ou do valor das matérias e das operações de fabrico ou outras, utilizadas ou efectuadas para produzir as mercadorias importadas;

b) De um montante representativo dos lucros e das despesas gerais, igual ao que é geralmente contabilizado nas vendas de mercadorias da mesma natureza ou da mesma espécie que as mercadorias a avaliar, efectuadas por produtores do país de exportação para a exportação com destino ao país de importação;

c) Do custo ou do valor de outras despesas que se deva ter em conta consoante a opção, em matéria de avaliação, escolhida por cada Membro por força do n.º 2 do artigo 8.º

2 - Nenhum Membro pode intimar ou obrigar uma pessoa não residente no seu território a apresentar documentos de contabilidade ou outros documentos para exame ou a permitir o acesso a documentos de contabilidade ou a outros documentos, com o fim de determinar um valor calculado. Contudo, as informações comunicadas pelo produtor das mercadorias, para efeitos da determinação do valor aduaneiro por aplicação das disposições do presente artigo, poderão ser verificadas num outro país pelas autoridades do país de importação, com o acordo do produtor e desde que essas autoridades notifiquem, com a suficiente antecedência, o governo do país em questão e que este não se oponha ao inquérito.

Artigo 7.º

1 - Se o valor aduaneiro das mercadorias importadas não puder ser determinado por aplicação das disposições dos artigos 1.º a 6.º, será determinado por critérios razoáveis compatíveis com os princípios e as disposições gerais do presente Acordo e do artigo VII do GATT de 1994 e com base nos dados disponíveis no país de importação.

2 - O valor aduaneiro determinado por aplicação das disposições do presente artigo não não se baseará:

a) No preço de venda no país de importação de mercadorias produzidas nesse país;

b) Num sistema que preveja a aceitação, para fins aduaneiros, do mais elevado de dois valores possíveis;

c) No preço de mercadorias no mercado interno do país de exportação;

d) No custo de produção distinto dos valores calculados que tiverem sido determinados para mercadorias idênticas ou similares em conformidade com as disposições do artigo 6.º;

e) No preço de mercadorias vendidas para exportação com destino a um país distinto do país de importação;

f) Em valores aduaneiros mínimos; o

g) Em valores arbitrários ou fictícios.

3 - Se o importador tal solicitar, será informado por escrito do valor aduaneiro determinado por aplicação das disposições do presente artigo e do método utilizado para o determinar.

Artigo 8.º

1 - Para determinar o valor aduaneiro por aplicação das disposições do artigo 1.º, acrescentar-se-á ao preço afectivamente pago ou a pagar pelas mercadorias importadas:

a) Os elementos seguintes, na medida em que forem suportados pelo comprador mas não tenham sido incluídos no preço efectivamente pago ou a pagar pelas mercadorias:

i) Comissões e despesas de corretagem, com excepção das comissões de compra;

ii) Custo dos recipientes que, para fins aduaneiros, se consideram como fazendo um todo com a mercadoria;

iii) Custo da embalagem, compreendendo a mão-de-obra assim como os materiais;

b) O valor, imputado de maneira adequada, dos seguintes produtos e serviços quando forem fornecidos directa ou indirectamente pelo comprador, sem despesas ou a custo reduzido, e utilizados aquando da produção e da venda para exportação das mercadorias importadas, na medida em que esse valor não tenha sido incluído no preço efectivamente pago ou a pagar:

i) Matérias, componentes, partes e elementos similares incorporados nas mercadorias importadas;

ii) Ferramentas, matrizes, moldes e objectos similares utilizados para a produção das mercadorias importadas;

iii) Matérias consumidas na produção das mercadorias importadas;

iv) Trabalhos de engenharia, de estudo, de arte e de design, planos e esboços executados fora do país de importação e necessários para a produção das mercadorias importadas;

c) Royalties e direitos de licença relativos às mercadorias a avaliar, que o comprador é obrigado a pagar, quer directa quer indirectamente, como condição de venda das mercadorias a avaliar, na medida em esses royalties e direitos de licença não tenham sido incluídos no preço efectivamente pago ou a pagar;

d) O valor de qualquer parte do produto da revenda, cessão ou utilização ulterior das mercadorias importadas que reverta directa ou indirectamente para o vendedor.

2 - Ao elaborar a sua legislação, cada Membro adoptará disposições para incluir ou excluir do valor aduaneiro, na totalidade ou em parte, os seguintes elementos:

a) Despesas de transporte das mercadorias importadas até ao porto ou local de importação;

b) Despesas de carga, de descarga e de manipulação ligadas ao transporte das mercadorias importadas até ao porto ou local de importação; e

c) Custo do seguro.

3 - Qualquer elemento que for acrescentado, por aplicação das disposições do presente artigo, ao preço efectivamente pago ou a pagar basear-se-á exclusivamente em dados objectivos e quantificáveis.

4 - Para a determinação do valor aduaneiro, nenhum elemento será acrescentado ao preço efectivamente pago a pagar, com excepção dos previstos no presente artigo.

Artigo 9.º

1 - Quando for necessário converter uma moeda para determinar o valor aduaneiro, a taxa de conversão a utilizar será a que tiver sido devidamente publicada pelas autoridades competentes do país de importação respectivo e reflectirá, de maneira tão efectiva quanto possível, para cada período abrangido por essa publicação, o valor corrente da moeda em questão nas transacções comerciais, expresso na moeda do país de importação.

2 - A taxa de conversão a utilizar será a que estiver em vigor no momento da exportação ou no momento da importação, segundo o que for previsto por cada Membro.

Artigo 10.º

Todas as informações que forem de natureza confidencial ou que forem fornecidas a título confidencial para efeitos de determinação do valor aduaneiro serão tratadas como estritamente confidenciais pelas autoridades competentes, as quais não as divulgarão sem autorização expressa da pessoa ou do Estado que as tiver fornecido, excepto na medida em que possam ser obrigadas a divulgá-las no contexto de processos judiciais.

Artigo 11.º

1 - A legislação de cada Membro deverá prever, no que se refere à determinação do valor aduaneiro, um direito de recurso, que não implique nenhuma penalidade, para o importador ou para qualquer outra pessoa que seja devedora dos direitos.

2 - Um primeiro direito de recurso que não implique nenhuma penalidade poderá ser exercido perante um órgão da administração aduaneira ou um órgão independente, mas a legislação de cada Membro deverá prever um direito de recurso, que não implique nenhuma penalidade, perante uma autoridade judicial.

3 - O recorrente será notificado da decisão pronunciada no recurso e as razões da decisão serão expostas por escrito. O recorrente será informado igualmente do direito eventual a um recurso ulterior.

Artigo 12.º

As disposições legislativas e regulamentares e as decisões judiciais e administrativas de aplicação geral destinadas a dar execução ao presente Acordo serão publicadas pelo país de importação em questão em conformidade com o artigo X do GATT de 1994.

Artigo 13.º

Se, no decurso da determinação do valor aduaneiro de mercadorias importadas, se tornar necessário diferir a determinação definitiva desse valor, o importador das mercadorias pode, contudo, retirá-las da alfândega, na condição de prestar, se isso lhe for exigido, uma garantia suficiente sob a forma de fiança, de depósito ou de outro meio mais apropriado, que cubra o pagamento dos direitos aduaneiros de que as mercadorias possam ser passíveis definitivamente. A legislação de cada membro deverá prever disposições aplicáveis nestas circunstâncias.

Artigo 14.º

As notas que figuram no Anexo I do presente Acordo fazem parte integrante deste Acordo e os artigos do presente Acordo devem ser lidos e aplicados em conjunção com as notas que se lhes referem. Os Anexos II e III fazem igualmente parte integrante do presente Acordo.

Artigo 15.º

1 - No presente Acordo:

a) A expressão «valor aduaneiro das mercadorias importadas» designa o valor das mercadorias determinado com vista à cobrança de direitos aduaneiros ad valorem sobre as mercadorias importadas;

b) A expressão «país de importação» designa o país ou território aduaneiro de importação; e

c) O termo «produzidas» significa igualmente cultivadas, fabricadas ou extraídas.

2 - No presente Acordo:

a) A expressão «mercadorias idênticas» designa mercadorias que são as mesmas sob todos os aspectos, incluindo as características físicas, a qualidade e o prestígio comercial. As pequenas diferenças de aspecto não obstam a que as mercadorias que em tudo o resto estão conformes com a definição sejam consideradas idênticas;

b) A expressão «mercadorias similares» designa mercadorias que, sem serem iguais sob todos os aspectos, apresentam características semelhantes e são compostas por matérias semelhantes, o que lhes permite preencherem as mesmas funções e serem comercialmente permutáveis. A qualidade das mercadorias, o prestígio comercial e a existência de uma marca são elementos a tomar em consideração para determinar se as mercadorias são similares;

c) As expressões «mercadorias idênticas» e «mercadorias similares» não se aplicam às mercadorias que incorporem ou contenham, consoante o caso, trabalhos de engenharia, de estudo, de arte ou de design, ou planos e esboços, relativamente aos quais não tenha sido feito qualquer ajustamento por aplicação do n.º 1, alínea b), iv), do artigo 8.º, pelo facto de esses trabalhos terem sido executados no país de importação;

d) Só serão consideradas «mercadorias idênticas» ou «mercadorias similares» as mercadorias que tiverem sido produzidas no mesmo país que as mercadorias a avaliar;

e) Só serão tomadas em consideração mercadorias produzidas por uma pessoa diferente quando não existirem mercadorias idênticas ou mercadorias similares, consoante o caso, produzidas pela mesma pessoa que produziu as mercadorias a avaliar.

3 - No presente Acordo, a expressão «mercadorias da mesma natureza ou da mesma espécie» designa mercadorias classificadas num grupo ou numa gama de mercadorias produzidas por um ramo de produção específico ou por um sector específico de um ramo de produção, e inclui as mercadorias idênticas ou similares.

4 - Para efeitos do presente Acordo, as pessoas só serão consideradas coligadas:

a) Se uma fizer parte da direcção ou do conselho de administração da empresa da outra e reciprocamente;

b) Se tiverem juridicamente a qualidade de sócios;

c) Se uma for o empregador da outra;

d) Se uma possuir, controlar ou detiver directa ou indirectamente 5% ou mais das acções ou títulos emitidos com direito a voto em ambas;

e) Se uma delas controlar a outra directa ou indirectamente;

f) Se ambas forem directa ou indirectamente controladas por uma terceira pessoa;

g) Se, em conjunto, controlarem directa ou indirectamente uma terceira pessoa; ou

h) Se forem membros da mesma família.

5 - As pessoas que estão associadas em negócios entre elas pelo facto de uma ser o agente, o distribuidor ou o concessionário exclusivo da outra, independentemente da designação utilizada, serão consideradas coligadas para efeitos do presente Acordo se satisfizerem um dos critérios enunciados no n.º 4.

Artigo 16.º

Mediante pedido apresentado por escrito, o importador terá o direito de receber, remetida pela administração aduaneira do país de importação, uma explicação escrita da maneira com foi determinado o valor aduaneiro das mercadorias desse importador.

Artigo 17.º

Nenhuma das disposições do presente Acordo poderá ser interpretada como restringindo ou contestando o direito de uma administração aduaneira de se assegurar da veracidade ou da exactidão de qualquer afirmação, documento ou declaração apresentados para efeitos de determinação do valor aduaneiro.

PARTE II

Administração do Acordo, consultas e resolução de litígios

Artigo 18.º

Instituições

1 - É instituído um Comité da Determinação do Valor Aduaneiro (designado por «Comité» no presente Acordo), composto por representantes de cada um dos Membros. O Comité elegerá o seu presidente e reunir-se-á normalmente uma vez por ano, ou segundo as modalidades previstas pelas disposições pertinentes do presente Acordo, a fim de dar aos Membros a possibilidade de procederem a consultas sobre as questões relativas à administração do sistema de determinação do valor aduaneiro por qualquer dos Membros, na medida em que essa administração possa afectar o funcionamento do referido Acordo ou a prossecução dos seus objectivos, e a fim de exercer as restantes atribuições que lhe poderão ser conferidas pelos Membros. O secretariado do Comité será assegurado pelo Secretariado da OMC.

2 - Será instituído um Comité Técnico da Determinação do Valor Aduaneiro (designado por «Comité Técnico» no presente Acordo) sob os auspícios do Conselho de Cooperação Aduaneira (designado por «CCA» no presente Acordo), que exercerá as atribuições enunciadas no Anexo II do presente Acordo e desempenhará as suas funções em conformidade com as regras de procedimento constantes do referido Anexo.

Artigo 19.º

Consultas e resolução de litígios

1 - Salvo disposições em contrário do presente Acordo, o Memorando de Entendimento sobre a Resolução de Litígios é aplicável às consultas e à resolução de litígios no âmbito do presente Acordo.

2 - No caso de um Membro considerar que uma vantagem resultante directa ou indirectamente do presente Acordo se encontra anulada ou comprometida, ou que a realização de um dos objectivos do referido Acordo está comprometida, em virtude das acções de outro ou de outros Membros, pode, a fim de alcançar uma solução mutuamente satisfatória da questão, solicitar a realização de consultas com o Membro ou Membros em causa. Cada Membro examinará de forma compreensiva qualquer pedido de consulta formulado por um outro Membro.

3 - O Comité Técnico prestará, a pedido, assistência e ajuda aos Membros que procedam a consultas.

4 - A pedido de uma das partes no litígio, ou por sua própria iniciativa, qualquer painel instituído para examinar um litígio relacionado com as disposições do presente Acordo pode solicitar ao Comité Técnico que proceda ao exame de qualquer questão que exija uma análise técnica. O painel determinará o mandato do Comité Técnico em relação ao litígio em causa e fixará o prazo para entrega do relatório do Comité Técnico. O painel tomará em consideração o relatório do Comité Técnico. Se o Comité Técnico não conseguir um consenso sobre determinada questão que lhe tenha sido submetida em conformidade com as disposições do presente número, o painel concederá às partes no litígio a possibilidade de lhe exporem a sua posição quanto a essa questão.

5 - As informações confidenciais comunicadas aos painéis não serão divulgadas sem autorização formal, da pessoa, organismo ou autoridade que as tiver fornecido. Quando essas informações forem pedidas a um painel e este não esteja autorizado a divulgá-las, será apresentado um resumo não confidencial das informações em causa autorizado pela pessoa, organismo ou autoridade que as tiver fornecido.

PARTE III

Tratamento especial e diferenciado

Artigo 20.º

1 - Os países em desenvolvimento Membros, que não sejam partes no Acordo sobre a Aplicação do Artigo VII do Acordo Geral sobre Pautas Aduaneiras e Comércio de 12 de Abril de 1979 podem diferir a aplicação das disposições do presente Acordo durante um período que não poderá exceder cinco anos a contar da data da entrada em vigor do Acordo OMC para os referidos Membros. Os países em desenvolvimento Membros que optarem por uma aplicação diferida do presente Acordo notificarão da sua decisão o Director-Geral da OMC.

2 - Para além do disposto no n.º 1, os países em desenvolvimento Membros, que não sejam partes no Acordo sobre a Aplicação do Artigo VII do Acordo Geral sobre Pautas Aduaneiras e Comércio de 12 de Abril de 1979 podem diferir a aplicação do n.º 2, alínea b), iii), do artigo 1.º e a aplicação do artigo 6.º durante um período que não poderá exceder três anos, a contar da data em que tiverem posto em aplicação todas as outras disposições do presente Acordo. Os países em desenvolvimento Membros que optarem por uma aplicação diferida das disposições referidas no presente número notificarão da sua decisão o Director-Geral da OMC.

3 - Os países desenvolvidos Membros fornecerão, em condições estabelecidas de comum acordo, assistência técnica aos países em desenvolvimento Membros que o solicitarem. A partir desta base, os países desenvolvidos Membros elaborarão programas de assistência técnica, que podem incluir, designadamente, formação de pessoal, assistência à preparação de medidas de aplicação, acesso às fontes de informação respeitantes à metodologia em matéria de determinação do valor aduaneiro e assessoria quanto à aplicação das disposições do presente Acordo.

PARTE IV

Disposições finais

Artigo 21.º

Reservas

Não poderão ser formuladas reservas relativas a disposições do presente Acordo sem o consentimento dos outros Membros.

Artigo 22.º

Legislação nacional

1 - Cada Membro assegurará, o mais tardar na data em que puser em aplicação as disposições do presente Acordo, a conformidade das suas disposições legislativas e regulamentares e procedimentos administrativos com as disposições do presente Acordo.

2 - Cada Membro informará o Comité de qualquer alteração introduzida nas suas disposições legislativas e regulamentares relacionadas com o presente Acordo, bem como na aplicação de tais disposições.

Artigo 23.º

Exame

O Comité examinará anualmente a aplicação e o funcionamento do presente Acordo, tendo em conta os seus objectivos. O Comité informará anualmente o Conselho do Comércio de Mercadorias dos factos ocorridos durante o período sobre o qual incide o exame.

Artigo 24.º

Secretariado

O Secretariado da OMC assegurará o secretariado do presente Acordo, salvo no que respeita às atribuições especificamente conferidas ao Comité Técnico, cujo secretariado será assegurado pelo Secretariado do CCA.

ANEXO I

NOTAS INTERPRETATIVAS

Nota geral

Aplicação sucessiva dos métodos de determinação:

1 - Os artigos 1.º a 7.º definem a maneira pela qual o valor aduaneiro das mercadorias importadas deve ser determinado por aplicação do presente Acordo. Os métodos de determinação são enunciados pela ordem em que são aplicáveis. O primeiro método para determinação do valor aduaneiro é definido no artigo 1.º e as mercadorias importadas devem ser avaliadas em conformidade com as disposições desse artigo sempre que estiverem preenchidas as condições previstas.

2 - Quando o valor aduaneiro não puder ser determinado por aplicação das disposições do artigo 1.º, dever-se-á passar sucessivamente aos artigos seguintes até ao primeiro desses artigos que permita determinar o valor aduaneiro. Sob reserva das disposições do artigo 4.º, só é lícito recorrer às disposições do artigo que vem imediatamente a seguir na ordem de aplicação quando o valor aduaneiro não puder ser determinado por aplicação das disposições de determinado artigo.

3 - Se o importador não solicitar a inversão da ordem dos artigos 5.º e 6.º, deve ser respeitada a ordem normal de aplicação. Se o importador apresentar um pedido nesse sentido, mas se em seguida se revelar impossível determinar o valor aduaneiro por aplicação das disposições do artigo 6.º, o valor aduaneiro deverá ser determinado por aplicação do artigo 5.º, se tal for possível.

4 - Quando o valor aduaneiro não puder ser determinado por aplicação das disposições dos artigos 1.º a 6.º, será determinado por aplicação do artigo 7.º

Aplicação dos princípios de contabilidade geralmente admitidos:

1 - Os «princípios de contabilidade geralmente admitidos» são os que são objecto, num determinado país e num dado momento, de um consenso confirmado ou de um apoio substancial reconhecido que estabelecem quais os recursos e as obrigações económicas a registar no activo e no passivo, quais as alterações do activo e do passivo a mencionar, como avaliar o activo e o passivo, bem como as alterações verificadas, quais as informações a divulgar e sob que forma, e quais os balanços financeiros a elaborar. Estas regras podem consistir tanto em grandes princípios orientadores de aplicação geral, como em práticas e procedimentos pormenorizados.

2 - Para efeitos do presente Acordo, a administração aduaneira de cada Membro utilizará as informações estabelecidas de forma compatível com os princípios de contabilidade geralmente admitidos no país que for adequado consoante o artigo em questão. Por exemplo, os lucros e as despesas gerais habituais, na acepção do artigo 5.º, serão determinados utilizando informações estabelecidas de forma compatível com os princípios de contabilidade geralmente admitidos no país de importação. Inversamente, os lucros e as despesas gerais habituais, na acepção do artigo 6.º, devem ser determinados utilizando informações estabelecidas de forma compatível com os princípios de contabilidade geralmente admitidos no país de produção. Outro exemplo: a determinação de um dos elementos referidos no n.º 1, alínea b), ii), do artigo 8.º, que será efectuada no país de importação, deve basear-se em informações estabelecidas de forma compatível com os princípios de contabilidade geralmente admitidos nesse país.

Nota relativa ao artigo 1.º

Preço efectivamente pago ou a pagar:

1 - O preço efectivamente pago ou a pagar é o pagamento total efectuado ou a efectuar pelo comprador ao vendedor, ou em benefício deste, pelas mercadorias importadas. O pagamento não tem obrigatoriamente de ser feito em dinheiro. Poderá ser feito através de cartas de crédito ou de instrumentos negociáveis. Poderá ser efectuado directa ou indirectamente. Um exemplo de pagamento indirecto será a regularização total ou parcial pelo comprador de uma dívida do vendedor.

2 - As actividades empreendidas pelo comprador por sua própria conta, distintas das actividades para as quais está previsto um ajustamento no artigo 8.º, não são consideradas como pagamentos indirectos ao vendedor, mesmo se for legítimo considerar que beneficiam o vendedor. Por conseguinte, para a determinação do valor aduaneiro, o custo dessas actividades não será acrescentado ao preço efectivamente pago ou a pagar.

3 - O valor aduaneiro não incluirá as despesas ou custos seguidamente indicados, contanto que sejam distintos do preço efectivamente pago ou a pagar pelas mercadorias importadas:

a) Encargos relativos a trabalhos de construção, instalação, montagem, manutenção ou assistência técnica realizados depois da importação em mercadorias importadas, tais como instalações, máquinas ou equipamentos industriais;

b) Custos de transporte após a importação;

c) Direitos e imposições do país de importação.

4 - Entende-se por preço efectivamente pago ou a pagar o preço das mercadorias importadas. Assim, as transferências de dividendos ou os restantes pagamentos do comprador ao vendedor que não se refiram às mercadorias importadas não fazem parte do valor aduaneiro.

N.º 1, alínea a), iii):

Entre as restrições que não tornam inaceitável um preço efectivamente pago ou a pagar figuram as restrições que não afectam substancialmente o valor das mercadorias. Tal será o caso, por exemplo, quando um vendedor solicitar a um comprador de veículos automóveis para não revender ou expor os veículos em questão antes de determinada data, que constitui a data de referência para definir o ano do modelo.

N.º 1, alínea b):

1 - Se a venda ou o preço estiverem subordinados a condições ou prestações cujo valor não se possa determinar relativamente às mercadorias a avaliar, o valor transaccional não será aceitável para fins aduaneiros. Poderá tratar-se, por exemplo, de uma das seguintes situações:

a) O vendedor fixa o preço das mercadorias importadas subordinando-o à condição de o comprador adquirir igualmente ouras mercadorias em quantidades determinadas;

b) O preço das mercadorias importadas depende do preço ou preços a que o comprador das mercadorias importadas vende outras mercadorias ao vendedor das mercadorias importadas;

c) O preço é fixado com base num meio de pagamento sem qualquer relação com as mercadorias importadas: por exemplo, quando as mercadorias importadas são produtos semiacabados que o vendedor fornece na condição de receber determinada quantidade de produtos acabados.

2 - Contudo, as condições ou prestações relacionadas com a produção ou a comercialização das mercadorias importadas não implicarão a rejeição do valor transaccional. Por exemplo, o facto de o comprador fornecer ao vendedor trabalhos de engenharia ou planos executados no país de importação não implicará a rejeição do valor transaccional para efeitos do artigo 1.º Do mesmo modo, se o comprador empreender, por sua própria conta, mesmo no quadro de um acordo com o vendedor, actividades referentes à comercialização das mercadorias importadas, o valor dessas actividades não fará parte do valor aduaneiro e as referidas actividades não implicarão a rejeição do valor transaccional.

N.º 2:

1 - As alíneas a) e b) do n.º 2 prevêem diversos meios para estabelecer a aceitabilidade de um valor transaccional.

2 - A alínea a) do n.º 2 prevê que, quando o comprador e o vendedor estão coligados, as circunstâncias próprias da venda serão examinadas e o valor transaccional será aceite como valor aduaneiro, desde que essa coligação não tenha influenciado o preço. Não se pretende com isto que as circunstâncias de venda devam ser examinadas em todos os casos em que o comprador e o vendedor estejam coligados. Este exame apenas será exigido quando existirem dúvidas quanto à aceitabilidade do preço. Se a administração aduaneira não tiver dúvidas quanto à aceitabilidade do preço, este deverá ser aceite sem que o importador seja obrigado a fornecer informações complementares. Por exemplo, a administração aduaneira pode ter examinado previamente a coligação em causa ou pode estar na posse de informações pormenorizadas sobre o comprador e o vendedor e ter já concluído, com base nesse exame ou nessas informações, que a coligação não influenciou o preço.

3 - Se a administração aduaneira não puder aceitar o valor transaccional sem um inquérito complementar, deve dar ao importador a possibilidade de fornecer todas as informações pormenorizadas que possam ser necessárias para lhe permitir examinar as circunstâncias próprias da venda. Neste contexto, a fim de determinar se a coligação influenciou o preço, a administração aduaneira deve estar pronta a examinar os aspectos pertinentes da transacção, incluindo o modo como o comprador e o vendedor organizam as respectivas relações comerciais e a forma pela qual o preço em questão foi calculado. Se puder ser provado que o comprador e o vendedor, apesar de estarem coligados na acepção do artigo 15.º, compram e vendem um ao outro como se não estivessem coligados, fica demonstrado que a coligação não influenciou o preço. A título de exemplo, se o preço tiver sido calculado de forma compatível com as práticas normais de fixação de preços no ramo de produção em questão ou com a forma como o vendedor calcula os seus preços para vendas a compradores não coligados, fica demonstrado que a coligação não influenciou o preço. Do mesmo modo, quando for provado que o preço é suficiente para cobrir todos os custos e assegurar um lucro representativo do lucro global realizado pela empresa num período de referência (por exemplo, numa base anual), nas vendas de mercadorias da mesma natureza ou da mesma espécie, fica demonstrado que o preço não foi influenciado.

4 - A alínea b) do n.º 2 prevê a possibilidade, para o importador, de demonstrar que o valor transaccional está muito próximo de um valor «critério» anteriormente aceite pela administração aduaneira e que é, por consequência, aceitável nos termos do disposto no artigo 1.º Quando for preenchido um dos critérios previstos na alínea b) do n.º 2, não será necessário examinar a questão da influência no preço referida na alínea a) do n.º 2. Se a administração aduaneira já estiver na posse de informações suficientes para poder concluir, sem mais inquéritos aprofundados, que um dos critérios previstos na alínea b) do n.º 2 se encontra preenchido, não existe nenhuma razão para exigir do importador a prova desse facto. Na acepção da alínea b) do n.º 2, a expressão «compradores não coligados» significa compradores que não estão coligados com o vendedor em nenhum caso específico.

N.º 2, alínea b):

Para determinar se um valor «está muito próximo» de outro valor deverão ser tomados em consideração diversos elementos. Trata-se, em especial, da natureza das mercadorias importadas, da natureza do ramo de produção considerado, da época sazonal em que as mercadorias são importadas e de apurar se a diferença de valor é significativa do ponto de vista comercial. Dado que estes elementos podem variar de caso para caso, é impossível aplicar em todos os casos uma norma uniforme, tal como uma percentagem fixa. Por exemplo, para determinar se o valor transaccional «está muito próximo» dos valores «critério» referidos no n.º 2, alínea b), do artigo 1.º, uma pequena diferença de valor poderá ser inaceitável num caso relativo a certo tipo de mercadorias, enquanto uma diferença importante poderá ser aceitável num caso relativo a outro tipo de mercadorias.

Nota relativa ao artigo 2.º

1 - Ao aplicar o artigo 2.º, a administração aduaneira recorrerá, sempre que for possível, a vendas de mercadorias idênticas, realizadas ao mesmo nível comercial e sensivelmente na mesma quantidade que as mercadorias a avaliar. Na falta de tais vendas, recorrer-se-á às vendas de mercadorias idênticas realizadas numa das três situações seguintes:

a) Venda ao mesmo nível comercial, mas em quantidades diferentes;

b) Venda a um nível comercial diferente, mas sensivelmente nas mesmas quantidades; ou

c) Venda a um nível comercial diferente e em quantidades diferentes.

2 - Se se tiver verificado uma venda numa destas três situações, serão efectuados ajustamentos para ter em conta, consoante o caso:

a) Unicamente o factor quantidade;

b) Unicamente o factor nível comercial; ou

c) O factor nível comercial e o factor quantidade.

3 - A expressão «e/ou» confere a possibilidade de recorrer às vendas e de efectuar os ajustamentos em qualquer uma das três situações acima descritas.

4 - Para efeitos do artigo 2.º, entende-se por valor transaccional de mercadorias idênticas importadas o valor aduaneiro, ajustado em conformidade com as disposições da alínea b) do n.º 1 e do n.º 2, que já tenha sido aceite nos termos do artigo 1.º

5 - É condição para os ajustamentos efectuados devido a diferenças de nível comercial ou de quantidade que esses ajustamentos, independentemente do facto de conduzirem a um aumento ou a uma diminuição do valor, apenas sejam efectuados com base em elementos comprovados que estabeleçam claramente que são razoáveis e exactos, tais como listas de preços em vigor em que figurem preços referentes a níveis diferentes ou a quantidades diferentes. Por exemplo, se as mercadorias importadas a avaliar consistirem numa remessa de 10 unidades e as únicas mercadorias idênticas importadas para as quais existe um valor transaccional corresponderem a uma venda de 500 unidades, sabendo-se que o vendedor concede descontos em função da quantidade, o ajustamento necessário poderá ser efectuado consultando a lista de preços do vendedor e utilizando o preço aplicável a uma venda de 10 unidades. Tal não implica que seja necessário ter havido uma venda efectiva de 10 unidades, uma vez que a existência de vendas tendo por objecto quantidades diferentes atesta a veracidade da lista. Contudo, na falta de tal critério objectivo, não é apropriado aplicar as disposições do artigo 2.º para determinação do valor aduaneiro.

Nota relativa ao artigo 3.º

1 - Ao aplicar o artigo 3.º, a administração aduaneira recorrerá, sempre que for possível, a vendas de mercadorias similares, realizadas ao mesmo nível comercial e sensivelmente na mesma quantidade que as mercadorias a avaliar. Na falta de tais vendas, recorrer-se-á às vendas de mercadorias similares realizadas numa das três situações seguintes:

a) Venda ao mesmo nível comercial, mas em quantidades diferentes;

b) Venda a um nível comercial diferente, mas sensivelmente nas mesmas quantidades; ou

c) Venda a um nível comercial diferente e em quantidades diferentes.

2 - Se se tiver verificado uma venda numa destas três situações, serão efectuados ajustamentos para ter em conta, consoante o caso:

a) Unicamente o factor quantidade;

b) Unicamente o factor nível comercial; ou

c) O factor nível comercial e o factor quantidade.

3 - A expressão «e/ou» confere a possibilidade de recorrer às vendas e de efectuar os ajustamentos em qualquer uma das três situações acima descritas.

4 - Para efeitos do artigo 3.º, entende-se por valor transaccional de mercadorias similares importadas o valor aduaneiro, ajustado em conformidade com as disposições da alínea b) do n.º 1 e do n.º 2, que já tenha sido aceite nos termos do artigo 1.º

5 - É condição para os ajustamentos efectuados devido a diferenças de nível comercial ou de quantidade que esses ajustamentos, independentemente do facto de conduzirem a um aumento ou a uma diminuição do valor, apenas sejam efectuados com base em elementos comprovados que estabeleçam claramente que são razoáveis e exactos, tais como listas de preços em vigor em que figurem preços referentes a níveis diferentes ou a quantidades diferentes. Por exemplo, se as mercadorias importadas a avaliar consistirem numa remessa de 10 unidades e as únicas mercadorias similares importadas para as quais existe um valor transaccional corresponderem a uma venda de 500 unidades, sabendo-se que o vendedor concede descontos em função da quantidade, o ajustamento necessário poderá ser efectuado consultando a lista de preços do vendedor e utilizando o preço aplicável a uma venda de 10 unidades. Tal não implica que seja necessário ter havido uma venda efectiva de 10 unidades, uma vez que a existência de vendas tendo por objecto quantidades diferentes atesta a veracidade da lista. Contudo, na falta de tal critério objectivo, não é apropriado aplicar as disposições do artigo 3.º para a determinação do valor aduaneiro.

Nota relativa ao artigo 5.º

1 - A expressão «preço unitário de venda das mercadorias [...] totalizando a quantidade mais elevada» significa o preço a que o maior número de unidades é vendido, quando de vendas feitas a pessoas não coligadas com os vendedores das mercadorias em questão, no primeiro nível comercial seguinte à importação.

2 - Por exemplo: são vendidas mercadorias com base numa lista de preços que estabelece preços unitários vantajosos para compras em maiores quantidades:

(ver documento original)

O maior número de unidades vendidas a um determinado preço é 80; por consequência, o preço unitário correspondente à venda totalizando a quantidade mais elevada é 90.

3 - Outro exemplo: efectuam-se duas vendas. Na primeira, são vendidas 500 unidades ao preço de 95 unidades monetárias cada uma. Na segunda, são vendidas 400 unidades ao preço de 90 unidades monetárias cada. Neste exemplo, o maior número de unidades vendidas a um determinado preço é 500; por consequência, o preço unitário correspondente à venda totalizando a quantidade mais elevada é 95.

4 - Terceiro exemplo: na situação seguidamente descrita, diversas quantidades são vendidas a preços diferentes:

a) Vendas:

(ver documento original)

b) Totais:

(ver documento original)

Neste exemplo, o maior número de unidades vendidas a um determinado preço é 65; por consequência, o preço unitário correspondente à venda totalizando a quantidade mais elevada é 90.

5 - Para determinar o preço unitário para efeitos do artigo 5.º, não deverá ser tomada em consideração nenhuma venda efectuada no país de importação, nas condições descritas no n.º 1 supra, a uma pessoa que forneça directa ou indirectamente, sem despesas ou a custo reduzido, qualquer um dos elementos especificados no n.º 1, alínea a), do artigo 8.º, para ser utilizado na produção ou na venda para exportação das mercadorias importadas.

6 - Convém notar que os «lucros e despesas gerais» referidos no n.º 1 do artigo 5.º deverão ser considerados como um todo. O montante fixado para esta dedução deverá ser determinado com base nas informações fornecidas pelo importador ou em seu nome, a menos que os dados do importador sejam incompatíveis com os que correspondem às vendas no país de importação de mercadorias importadas da mesma natureza ou da mesma espécie. Quando os dados do importador forem incompatíveis com estes últimos valores, o montante a fixar para os lucros e despesas gerais poderá basear-se em informações pertinentes distintas das fornecidas pelo importador ou em seu nome.

7 - As «despesas gerais» incluem os custos directos ou indirectos de comercialização das mercadorias em questão.

8 - As imposições locais a pagar devido à venda das mercadorias, que não sejam objecto de dedução em conformidade com as disposições do n.º 1, alínea a), iv), do artigo 5.º, deverão ser deduzidas em conformidade com o n.º 1, alínea a), i), do artigo 5.º

9 - Para determinar as comissões ou os lucros e despesas gerais habituais em conformidade com as disposições do n.º 1 do artigo 5.º, a questão de saber se certas mercadorias são da «mesma natureza ou da mesma espécie» que outras mercadorias deve ser decidida caso a caso, tomando em consideração as circunstâncias envolvidas. Deverá proceder-se a um exame das vendas, no país de importação, do conjunto ou da gama, o mais restrito possível, de mercadorias importadas da mesma natureza ou da mesma espécie que inclua as mercadorias a avaliar, relativamente às quais podem ser fornecidas as informações necessárias. Para efeitos do artigo 5.º, as «mercadorias da mesma natureza ou da mesma espécie» incluem as mercadorias importadas do mesmo país que as mercadorias a avaliar, bem como as mercadorias importadas de outros países.

10 - Para efeitos do n.º 1, alínea b), do artigo 5.º, a «data mais próxima» será a data em que as mercadorias importadas, ou mercadorias idênticas ou similares importadas, são vendidas em quantidade suficiente para que o preço unitário possa ser estabelecido.

11 - Quando se recorrer ao método previsto no n.º 2 do artigo 5.º, as deduções efectuadas para ter em conta o valor acrescentado pelo complemento de fabrico ou pela transformação ulterior basear-se-ão em dados objectivos e quantificáveis relativos ao custo desses trabalhos. Os cálculos basear-se-ão nas fórmulas, processos, métodos de cálculo admitidos no ramo de produção em causa e noutras práticas desse ramo de produção.

12 - Reconhece-se que o método de avaliação previsto no n.º 2 do artigo 5.º não deveria ser, normalmente, aplicável quando, em consequência de complemento de fabrico ou transformação ulterior, as mercadorias importadas perderem a sua identidade. Contudo, podem surgir casos em que, embora as mercadorias importadas tenham perdido a sua identidade, o valor acrescentado pelo complemento de fabrico ou pela transformação pode ser determinado com precisão, sem excessivas dificuldades. Inversamente, podem apresentar-se casos em que as mercadorias importadas conservam a sua identidade mas constituem um elemento de tão reduzida importância nas mercadorias vendidas no país de importação que o recurso a este método de avaliação seria injustificado. Dadas as considerações que precedem, as situações deste tipo devem ser examinadas caso a caso.

Nota relativa ao artigo 6.º

1 - Regra geral, o valor aduaneiro é determinado, por força do presente Acordo, com base em informações imediatamente disponíveis no país de importação. Contudo, para determinar um valor calculado, pode ser necessário examinar os custos de produção das mercadorias a avaliar e outras informações que terão de ser obtidas fora do país de importação. Além disso, na maior parte dos casos, o produtor das mercadorias não estará abrangido pela jurisdição das autoridades do país de importação. A utilização do método do valor calculado será, em geral, circunscrita aos casos em que o comprador e o vendedor estão coligados e em que o produtor está disposto a comunicar, às autoridades do país de importação, os dados necessários sobre a determinação dos custos e a conceder facilidades para quaisquer verificações ulteriores, eventualmente necessárias.

2 - O «custo ou o valor» referido no n.º 1, alínea a), do artigo 6.º será determinado com base em informações relativas à produção das mercadorias a avaliar, que serão fornecidas pelo produtor ou sem seu nome. Basear-se-á na contabilidade comercial do produtor, contanto que essa contabilidade seja compatível com os princípios de contabilidade geralmente admitidos que são aplicados no país de produção das mercadorias.

3 - O «custo ou o valor» incluirá o custo dos elementos especificados no n.º 1, alínea a), ii) e iii), do artigo 8.º Incluirá também o valor, imputado nas proporções adequadas em conformidade com as disposições da nota relativa ao artigo 8.º, de qualquer um dos elementos especificados no n.º 1, alínea b), do artigo 8.º que tenha sido fornecido directa ou indirectamente pelo comprador para ser utilizado aquando da produção das mercadorias importadas. O valor dos trabalhos referidos no n.º 1, alínea b), iv), do artigo 8.º que sejam executados no país de importação apenas será incluído na medida em que tais trabalhos se encontrem a cargo do produtor. Fica entendido que, ao determinar o valor calculado, o custo ou o valor de qualquer um dos elementos referidos no presente número não pode ser contado duas vezes.

4 - O «montante representativo dos lucros e despesas gerais» referido no n.º 1, alínea b), do artigo 6.º deverá ser determinado com base nas informações fornecidas pelo produtor ou em seu nome, a menos que os dados do produtor sejam incompatíveis com os que correspondem, normalmente, às vendas de mercadorias da mesma natureza ou da mesma espécie, realizadas por produtores do país de exportação, para exportação com destino ao país de importação.

5 - Convém notar, a este respeito, que o «montante representativo dos lucros e despesas gerais» deverá ser considerado como um todo. Por consequência, se, num caso particular, o lucro do produtor for baixo e as despesas gerais elevadas, o lucro e as despesas gerais do produtor considerados em conjunto podem, contudo, ser compatíveis com os que correspondem normalmente às vendas de mercadorias da mesma natureza ou da mesma espécie. Tal situação poderá ocorrer, por exemplo, se um produto for lançado no país de importação e o produtor se contentar com um lucro nulo ou baixo para contrabalançar as despesas gerais elevadas respeitantes a esse lançamento. Quando o produtor puder demonstrar que o lucro baixo nas vendas das mercadorias importadas é consequência de circunstâncias comerciais especiais, o lucro real do produtor deverá ser tomado em consideração, contanto que o produtor o justifique com razões comerciais válidas e que a sua política de preços reflicta as políticas habituais de preços seguidas no ramo de produção em causa. Tal poderá ser o caso, por exemplo, de produtores que sejam obrigados a baixar temporariamente os seus preços devido a uma diminuição imprevisível da procura ou de produtores que vendam as mercadorias para completar uma gama de mercadorias produzidas no país de importação e se contentem com um lucro baixo a fim de manter a sua competitividade. Quando os montantes dos lucros e despesas gerais fornecidos pelo produtor não forem compatíveis com os que correspondem normalmente às vendas de mercadorias da mesma natureza ou da mesma espécie que as mercadorias a avaliar, realizadas por produtores do país de exportação, para exportação com destino ao país de importação, o montante dos lucros e despesas gerais poderá basear-se em informações pertinentes distintas das fornecidas pelo produtor das mercadorias ou em seu nome.

6 - Quando, para determinar um valor calculado, se utilizam informações distintas das fornecidas pelo produtor ou em seu nome, as autoridades do país de importação informarão o importador, a pedido deste, sobre a origem dessas informações, os dados utilizados e os cálculos efectuados com base nesses dados, sob reserva das disposições do artigo 10.º

7 - As «despesas gerais» referidas no n.º 1, alínea b), do artigo 6.º incluem os custos directos ou indirectos da produção e da venda das mercadorias para exportação, que não estejam incluídos em aplicação do n.º 1, alínea a), do artigo 6.º

8 - Para determinar se certas mercadorias são da «mesma natureza ou da mesma espécie» que outras mercadorias terá de se proceder caso a caso, tomando em consideração as circunstâncias envolvidas. Para determinar os lucros e despesas gerais habituais em conformidade com as disposições do artigo 6.º, deverá proceder-se a um exame das vendas, para exportação com destino ao país de importação, do conjunto ou da gama, o mais restrito possível, de mercadorias, que inclua as mercadorias a avaliar, relativamente às quais podem ser fornecidas as informações necessárias. Para efeitos do artigo 6.º, as «mercadorias da mesma natureza ou da mesma espécie» devem ser do mesmo país que as mercadorias a avaliar.

Nota relativa ao artigo 7.º

1 - Os valores aduaneiros determinados por aplicação das disposições do artigo 7.º deverão, tanto quanto possível, basear-se em valores aduaneiros previamente determinados.

2 - Os métodos de determinação que devem ser utilizados por força do artigo 7.º são os definidos nos artigos 1.º a 6.º, embora uma flexibilidade razoável na aplicação desses métodos esteja em conformidade com os objectivos e as disposições do artigo 7.º

3 - Apresentam-se alguns exemplos do que deve entender-se por flexibilidade razoável:

a) Mercadorias idênticas: o requisito segundo o qual as mercadorias idênticas devem ser exportadas no mesmo momento que as mercadorias a avaliar, ou em momento muito próximo, pode ser interpretado com flexibilidade; mercadorias idênticas importadas, produzidas num país distinto do país de exportação das mercadorias a avaliar, podem servir de base para determinar o valor aduaneiro; podem ser utilizados valores aduaneiros de mercadorias idênticas importadas já determinados por aplicação das disposições dos artigos 5.º e 6.º;

b) Mercadorias similares: o requisito segundo o qual as mercadorias similares devem ser exportadas no mesmo momento que as mercadorias a avaliar, ou em momento muito próximo, pode ser interpretado com flexibilidade; mercadorias similares importadas, produzidas num país distinto do país de exportação das mercadorias a avaliar, podem servir de base para determinar o valor aduaneiro; podem ser utilizados valores aduaneiros de mercadorias similares importadas já determinados por aplicação das disposições dos artigos 5.º e 6.º;

c) Método de dedução: o requisito previsto no n.º 1, alínea a), do artigo 5.º, segundo o qual as mercadorias devem ter sido vendidas «no mesmo estado em que foram importadas» pode ser interpretado com flexibilidade; o prazo de 90 dias pode ser aplicado com flexibilidade.

Nota relativa ao artigo 8.º

N.º 1, alínea a), i):

1 - Pela expressão «comissões de compra» entende-se as somas pagas por um importador ao seu agente, pelo serviço prestado ao representar o importador no estrangeiro, na compra das mercadorias a avaliar.

N.º 1, alínea b), ii):

1 - Para imputar às mercadorias importadas os elementos especificados no n.º 1, alínea b), ii), do artigo 8.º, devem ser tidos em conta dois factores: o valor do elemento em si mesmo e a forma como esse elemento deve ser imputado às mercadorias importadas. A imputação destes elementos deverá efectuar-se de forma razoável, apropriada às circunstâncias e de acordo com os princípios de contabilidade geralmente admitidos.

2 - No que respeita ao valor do elemento, se o importador adquirir por um dado custo o referido elemento a um vendedor não coligado com o importador, esse custo constitui o valor do elemento. Se o elemento tiver sido produzido pelo importador ou por uma pessoa com ele coligada, o valor do elemento será o custo da sua produção. Se o elemento tiver sido utilizado precedentemente pelo importador, quer tenha ou não sido adquirido ou produzido por este, o custo inicial de aquisição ou de produção deverá ser ajustado para valores inferiores, para ter em conta essa utilização e determinar o valor do elemento.

3 - Uma vez determinado o valor do elemento, é necessário imputá-lo às mercadorias importadas. Existem diversas possibilidades para o efeito. O valor pode, por exemplo, ser imputado inteiramente à primeira remessa, se o importador desejar pagar de uma só vez os direitos sobre o valor total. Outro exemplo: o importador pode solicitar que o valor seja imputado ao número de unidades produzidas até ao momento da primeira remessa. Ainda outro exemplo: o importador pode solicitar que o valor seja imputado à totalidade da produção prevista, no caso de existirem contratos ou compromissos firmes para essa produção. O método de imputação utilizado dependerá da documentação apresentada pelo importador.

4 - A título ilustrativo, considere-se o caso de um importador que fornece ao produtor um molde a utilizar na produção das mercadorias importadas e que celebra com esse produtor um contrato de compra de 10000 unidades. No momento da chegada da primeira remessa, composta por 1000 unidades, o produtor já produziu 4000 unidades. O importador pode solicitar à administração aduaneira que o valor do molde seja imputado a 1000, 4000 ou 10000 unidades.

N.º 1, alínea b), iv):

1 - Os valores a acrescentar aos elementos especificados no n.º 1, alínea b), iv), do artigo 8.º deverão basear--se em dados objectivos e quantificáveis. A fim de reduzir ao mínimo a sobrecarga que representa, para o importador e para a administração aduaneira, a determinação dos valores a acrescentar, convirá utilizar, sempre que possível, os dados imediatamente disponíveis através do sistema de contabilidade comercial do comprador.

2 - Em relação aos elementos fornecidos pelo comprador, que este comprou ou alugou, o valor a acrescentar será o custo dessa compra ou aluguer. Os elementos que são do domínio público não implicarão qualquer adição, para além do custo da reprodução.

3 - O grau de facilidade com que podem ser calculados os valores a acrescentar depende da estrutura da empresa considerada, das suas práticas de gestão e dos seus métodos contabilísticos.

4 - Por exemplo, pode suceder que uma empresa importadora de diversos produtos provenientes de vários países efectue a contabilidade do seu centro de design, situado fora do país de importação, de tal forma que permita conhecer com exactidão os custos imputáveis a um determinado produto. Neste tipo de casos, será adequado efectuar um ajustamento directo em conformidade com as disposições do artigo 8.º

5 - Por outro lado, pode suceder que uma empresa inclua os custos do seu centro de design, situado fora do país de importação, nas despesas gerais, sem os imputar a produtos específicos. Neste tipo de casos, poderá ser efectuado, por aplicação das disposições do artigo 8.º, um ajustamento adequado, no que se refere às mercadorias importadas, imputando o total dos custos do centro de design ao conjunto da produção que beneficia da actividade desse centro e acrescentando os custos assim imputados ao preço das mercadorias importadas, em função do número de unidades.

6 - As variações de circunstâncias acima mencionadas exigem, obviamente, que sejam tomados em consideração factores diferentes para determinar o método de cálculo apropriado.

7 - Nos casos em que a produção do elemento em questão envolve um certo número de países, ao longo de um certo intervalo de tempo, o ajustamento deverá limitar-se ao valor efectivamente acrescentado a esse elemento fora do país de importação.

N.º 1, alínea c):

1 - Os royalties e os direitos de licença referidos no n.º 1, alínea c), do artigo 8.º podem incluir, designadamente, os pagamentos relativos a patentes, marcas e direitos de autor. Contudo, na determinação do valor aduaneiro, as despesas relativas ao direito de reproduzir as mercadorias importadas no país de importação não serão acrescentadas ao preço efectivamente pago ou a pagar pelas mercadorias importadas.

2 - Os pagamentos efectuados pelo comprador como contrapartida do direito de distribuir ou de revender as mercadorias importadas não serão acrescentados ao preço efectivamente pago ou a pagar pelas mercadorias importadas, se esses pagamentos não constituírem uma condição de venda das mercadorias importadas, para exportação com destino ao país de importação.

N.º 3:

Quando não existirem dados objectivos e quantificáveis, no que se refere aos elementos que devam ser acrescentados em conformidade com as disposições do artigo 8.º, o valor transaccional não poderá ser determinado por aplicação das disposições do artigo 1.º A título ilustrativo, considere-se a seguinte situação: é pago um royalty com base no preço de venda, no país de importação, de 1 litro de determinado produto que foi importado a peso e transformado em solução depois da importação. Se o royalty se basear em parte nas mercadorias importadas e, em parte, noutros factores que não tenham nenhuma relação com essas mercadorias (por exemplo, quando as mercadorias importadas são misturadas com ingredientes de origem nacional e deixam de poder ser identificadas separadamente ou quando o royalty não é distinguível de medidas financeiras especiais acordadas entre o comprador e o vendedor), será inadequado procurar acrescentar um elemento correspondente a esse royalty. Contudo, se o montante do royalty se basear unicamente nas mercadorias importadas e puder ser facilmente quantificado, pode-se acrescentar um elemento ao preço efectivamente pago ou a pagar.

Nota relativa ao artigo 9.º

Para efeitos do artigo 9.º, o «momento da importação» pode ser o mesmo da declaração aduaneira.

Nota relativa ao artigo 11.º

1 - O artigo 11.º confere ao importador o direito de recurso contra uma determinação do valor efectuada pela administração aduaneira relativamente às mercadorias a avaliar. O importador pode primeiramente interpor recurso perante uma autoridade superior da administração aduaneira, mas terá o direito de recorrer, em última instância, perante as autoridades judiciais.

2 - A expressão «que não implique nenhuma penalidade» significa que o importador não será passível ou ameaçado de multa apenas por ter decidido exercer o direito de recurso. As despesas normais de justiça e os honorários dos advogados não serão considerados como multa.

3 - Contudo, nenhuma das disposições do artigo 11.º poderá impedir um Membro de exigir que os direitos aduaneiros fixados sejam pagos integralmente antes de o recurso ser interposto.

Nota relativa ao artigo 15.º

N.º 4:

Para efeitos do artigo 15.º, o termo «pessoas» aplica--se, se for caso disso, a pessoas colectivas.

N.º 4, alínea e):

Para efeitos do presente Acordo, considera-se que uma pessoa controla outra quando a primeira estiver, de direito ou de facto, em posição de exercer sobre a segunda um poder de autoridade ou de orientação.

ANEXO II

COMITÉ TÉCNICO DA DETERMINAÇÃO DO VALOR ADUANEIRO

1 - Em conformidade com o artigo 18.º do presente Acordo, o Comité Técnico será instituído sob os auspícios do Conselho de Cooperação Aduaneira, a fim de assegurar, a nível técnico, a uniformidade da interpretação e de aplicação do presente Acordo.

2 - As atribuições do Comité Técnico serão as seguintes:

a) Examinar os problemas técnicos específicos que surjam na administração quotidiana dos sistemas de determinação do valor aduaneiro dos Membros e emitir pareceres consultivos sobre as soluções adequadas, com base nos factos apresentados;

b) Estudar, quando tal for solicitado, as regulamentações, procedimentos e práticas relativos à determinação do valor, na medida em que se encontrem subordinados ao presente Acordo, e elaborar relatórios sobre as conclusões desses estudos;

c) Elaborar e difundir relatórios anuais acerca dos aspectos técnicos do funcionamento e da situação do presente Acordo;

d) Dar informações e pareceres, sobre qualquer questão relativa à determinação do valor aduaneiro de mercadorias importadas, que sejam solicitados por qualquer Membro ou pelo Comité. Essas informações e pareceres poderão assumir a forma de pareceres consultivos, de comentários ou de notas explicativas;

e) Facilitar, quando tal for solicitado, a prestação de assistência técnica aos Membros, a fim de promover a aceitação internacional do presente Acordo;

f) Examinar as questões que lhe sejam submetidas por qualquer painel, em conformidade com as disposições do artigo 19.º do presente Acordo;

g) Exercer qualquer outra atribuição que o Comité lhe confie.

Considerações gerais

3 - O Comité Técnico procurará concluir, num prazo de tempo razoavelmente curto, os seus trabalhos sobre questões específicas, em especial as que lhe forem submetidas pelos Membros, pelo Comité ou por um painel. Nos termos do disposto no n.º 4 do artigo 19.º, os painéis fixarão os prazos específicos para entrega dos relatórios do Comité Técnico, o qual apresentará os relatórios em questão dentro desse prazo.

4 - O Comité Técnico será assistido nas suas actividades, de forma adequada, pelo Secretariado do CCA.

Representação

5 - Cada Membro terá o direito de se fazer representar no Comité Técnico. Cada Membro poderá designar um delegado e um ou vários suplentes para o representar no Comité Técnico. Qualquer Membro assim representado no Comité Técnico é designado por «membro do Comité Técnico» no presente Anexo. Os representantes dos membros do Comité Técnico poderão ser assistidos por conselheiros. O Secretariado do OMC poderá igualmente assistir às reuniões com o estatuto de observador.

6 - Os membros do CCA que não sejam Membros da OMC poderão fazer-se representar nas reuniões do Comité Técnico por um delegado e um ou vários suplentes. Esses representantes assistirão às reuniões do Comité Técnico como observadores.

7 - Sob reserva da aprovação do presidente do Comité Técnico, o Secretário-Geral do CCA (designado por «Secretário-Geral» no presente Anexo) poderá convidar representantes de governos que não sejam Membros da OMC, nem membros do CCA, bem como representantes de organizações governamentais e profissionais internacionais, para assistir às reuniões do Comité Técnico como observadores.

8 - As designações dos delegados, suplentes e conselheiros para as reuniões do Comité Técnico serão comunicadas ao Secretário-Geral.

Reuniões do Comité Técnico

9 - O Comité Técnico reunir-se-á sempre que necessário, mas, pelo menos, duas vezes por ano. A data de cada reunião será fixada pelo Comité Técnico na sessão precedente. A data da reunião poderá ser alterada quer a pedido de um membro do Comité Técnico, confirmado pela maioria simples dos membros do Comité Técnico, quer, em casos urgentes, a pedido do presidente. Sem prejuízo das disposições da primeira frase do presente número, o Comité Técnico reunir-se-á sempre que necessário para examinar qualquer questão que lhe seja submetida por um painel, em conformidade com as disposições do artigo 19.º do presente Acordo.

10 - As reuniões do Comité Técnico terão lugar na sede do CCA, salvo decisão em contrário.

11 - O Secretário-Geral informará todos os membros do Comité Técnico e os participantes referidos nos n.os 6 e 7 da data de abertura de cada sessão do Comité Técnico, com uma antecedência mínima de 30 dias, excepto nos casos urgentes.

Ordem de trabalhos

12 - O Secretário-Geral elaborará uma ordem de trabalhos provisória para cada sessão e comunicá-la-á aos membros do Comité Técnico e aos participantes referidos nos n.os 6 e 7 com uma antecedência mínima de 30 dias em relação à abertura da sessão, excepto nos casos urgentes. Esta ordem de trabalhos incluirá todos os pontos cuja inscrição tenha sido aprovada pelo Comité Técnico na sessão precedente, todos os pontos inscritos pelo presidente, por sua própria iniciativa, e todos os pontos cuja inscrição tenha sido solicitada pelo Secretário-Geral, pelo Comité ou por qualquer membro do Comité Técnico.

13 - O Comité Técnico aprovará a ordem de trabalhos na abertura de cada sessão. No decurso da sessão, a ordem de trabalhos poderá ser alterada em qualquer momento pelo Comité Técnico.

Composição da mesa e regulamento interno

14 - O Comité Técnico elegerá entre os delegados dos seus membros um presidente e um ou vários vice-presidentes. O mandato do presidente e dos vice-presidentes será de um ano. O presidente e os vice-presidentes cessantes serão reelegíveis. O mandato de um presidente ou vice-presidente que deixe de representar um membro do Comité Técnico cessará automaticamente.

15 - Se o presidente não puder comparecer a uma reunião ou se se ausentar durante parte dessa reunião, a presidência será assegurada por um vice-presidente. Nessa eventualidade, esse vice-presidente terá os mesmos poderes e os mesmos deveres que o presidente.

16 - O presidente da reunião participará nos trabalhos do Comité Técnico na qualidade de presidente e não na qualidade de representante de um membro do Comité Técnico.

17 - Além do exercício dos outros poderes que lhe são conferidos por estas disposições, o presidente abrirá e encerrará cada reunião, conduzirá os debates, concederá a palavra e, em conformidade com as presentes disposições, dirigirá os trabalhos. O presidente poderá igualmente chamar à ordem qualquer orador se as suas observações não forem pertinentes.

18 - Qualquer delegação poderá apresentar um ponto de ordem durante o debate de qualquer questão. Nesse caso, o presidente tomará imediatamente uma decisão sobre a questão. Se a decisão for contestada, o presidente submetê-la-á a votação; se não for rejeitada, a decisão será mantida.

19 - O Secretário-Geral ou os membros do Secretariado do CCA por si designados assegurarão o secretariado das reuniões do Comité Técnico.

Quórum e votação

20 - O quórum será constituído pela maioria simples dos representantes dos membros do Comité Técnico.

21 - Cada membro do Comité Técnico disporá de um voto. Qualquer decisão do Comité Técnico será tomada por maioria de dois terços dos membros presentes. Qualquer que seja o resultado da votação sobre determinada questão, o Comité Técnico terá a faculdade de apresentar um relatório completo sobre essa questão ao Comité e ao CCA, indicando os diferentes pontos de visto expressos no decurso dos debates. Não obstante as disposições precedentes do presente número, as decisões do Comité Técnico sobre as questões que lhe forem submetidas por um painel serão tomadas por consenso. Se o Comité Técnico não conseguir um consenso sobre determinada questão que lhe tenha sido submetida por um painel, o Comité Técnico apresentará um relatório circunstanciado dos factos, expondo os pontos de vista dos membros.

Línguas e documentos

22 - As línguas oficiais do Comité Técnico serão o espanhol, o francês e o inglês. As intervenções ou declarações pronunciadas numa destas três línguas serão imediatamente traduzidas nas restantes línguas oficiais, salvo se todas as delegações tiverem concordado em renunciar a essa tradução. As intervenções ou declarações pronunciadas numa outra língua serão traduzidas em espanhol, francês e inglês sujeitas às mesmas condições, mas neste caso a delegação em causa fornecerá a tradução em espanhol, francês ou inglês. O espanhol, o francês e o inglês serão as únicas línguas utilizadas nos documentos oficiais do Comité Técnico. As notas e a correspondência apresentadas ao Comité Técnico deverão ser redigidas numa das línguas oficiais.

23 - O Comité Técnico elaborará um relatório sobre cada uma das sessões e, se o presidente o julgar necessário, serão estabelecidas actas ou resumos analíticos das reuniões. O presidente ou uma pessoa designada pelo presidente apresentará um relatório sobre os trabalhos do Comité Técnico em cada reunião do Comité e em cada reunião do CCA.

ANEXO III

1 - O prazo de cinco anos previsto no n.º 1 do artigo 20.º para a aplicação das disposições do Acordo pelos países em desenvolvimento Membros poderá revelar--se, na prática, insuficiente para alguns desses países. Em tais casos, o país em desenvolvimento Membro poderá, antes do fim do período referido no n.º 1 do artigo 20.º, solicitar que esse período seja prorrogado, ficando entendido que os Membros examinarão tais pedidos de forma compreensiva desde que o país em desenvolvimento Membro em questão demonstre que o pedido é fundamentado.

2 - Os países em desenvolvimento que actualmente efectuam a determinação do valor das mercadorias com base em valores mínimos fixados oficialmente poderão eventualmente formular uma reserva, que lhes permita conservar esses valores numa base limitada e transitória, de acordo com normas e condições a aprovar pelos Membros.

3 - Os países em desenvolvimento que considerarem que a inversão da ordem de aplicação a pedido do importador, prevista no artigo 4.º do Acordo, é susceptível de lhes criar reais dificuldades poderão eventualmente formular uma reserva ao artigo 4.º, nos seguintes termos:

O Governo de ... reserva-se o direito de dispor que a disposição pertinente do artigo 4.º do Acordo só será aplicada se as autoridades aduaneiras acederem ao pedido de inversão da ordem de aplicação dos artigos 5.º e 6.º

Se um país em desenvolvimento formular tal reserva, os Membros darão o seu consentimento a essa reserva em conformidade com as disposições do artigo 21.º do Acordo.

4 - Os países em desenvolvimento poderão eventualmente formular uma reserva ao n.º 2 do artigo 5.º do Acordo, nos seguintes termos:

O Governo de ... reserva-se o direito de dispor que as disposições do n.º 2 do artigo 5.º do Acordo serão aplicadas em conformidade com o disposto na nota a elas relativa, quer o importador o solicite ou não.

Se um país em desenvolvimento formular tal reserva, os Membros darão o seu consentimento a essa reserva em conformidade com as disposições do artigo 21.º do Acordo.

5 - Alguns países em desenvolvimento podem ter dificuldades em aplicar as disposições do artigo 1.º do Acordo às importações efectuadas nesses países por agentes, distribuidores ou concessionários exclusivos. Se tais dificuldades vierem a surgir na prática em países em desenvolvimento Membros que apliquem o Acordo, a questão será estudada, a pedido desses Membros, a fim de encontrar uma solução adequada.

6 - O artigo 17.º reconhece que, para aplicar o Acordo, as administrações aduaneiras podem ter necessidade de averiguar a veracidade ou a exactidão de uma afirmação, de um documento ou de uma declaração que lhes seja apresentada para efeitos de determinação do valor aduaneiro. O artigo admite, por conseguinte, que poderão ser efectuadas investigações para verificar, por exemplo, se os elementos de apreciação do valor que foram declarados ou apresentados na alfândega para efeitos de determinação do valor aduaneiro estão completos e correctos. Os Membros, sob reserva das respectivas legislações e dos respectivos procedimentos nacionais, têm o direito de contar com a plena cooperação dos importadores nessas investigações.

7 - O preço efectivamente pago ou a pagar inclui todos os pagamentos efectuados ou a efectuar como condição de venda das mercadorias importadas, pelo comprador ou vendedor ou pelo comprador a um terceiro para satisfazer uma obrigação do vendedor.

ACORDO SOBRE A INSPECÇÃO ANTES DA EXPEDIÇÃO

Os Membros:

Verificando que, em 20 de Setembro de 1986, os Ministros acordaram em que as negociações comerciais multilaterais do Uruguay Round terão por objectivo «assegurar uma maior liberalização e expansão do comércio mundial», «reforçar o papel do GATT» e «aumentar a capacidade de resposta do sistema do GATT em relação à evolução da conjuntura económica internacional»;

Verificando que um certo número de países em desenvolvimento Membros recorrem à inspecção antes da expedição;

Reconhecendo que os países em desenvolvimento têm necessidade de o fazer pelo tempo e na medida necessários para verificar a qualidade, quantidade ou preço dos produtos importados;

Conscientes de que tais programas devem ser realizados sem originar atrasos desnecessários ou um tratamento desigual;

Verificando que esta inspecção é, por definição, efectuada no território dos Membros exportadores;

Reconhecendo a necessidade de estabelecer um quadro internacional acordado de direitos e obrigações tanto dos Membros utilizadores como dos Membros exportadores;

Reconhecendo que os princípios e obrigações enunciados no GATT de 1994 são aplicáveis às actividades das entidades de inspecção antes da expedição mandatadas pelos governos que são Membros da OMC;

Reconhecendo que é desejável assegurar a transparência do funcionamento das entidades de inspecção antes da expedição, bem como das disposições legislativas e regulamentares relacionadas com a inspecção antes da expedição;

Desejosos de assegurar a resolução rápida, eficaz e equitativa dos litígios entre os exportadores e as entidades de inspecção antes da expedição decorrentes do presente Acordo;

acordam no seguinte:

Artigo 1.º

Âmbito de aplicação - Definições

1 - O presente Acordo é aplicável a todas as actividades de inspecção antes da expedição realizadas no território de Membros, quer tais actividades sejam confiadas por contrato ou por mandato, pelo governo, ou por qualquer organismo governamental de um Membro.

2 - A expressão «Membro utilizador» designa um Membro cujo governo ou qualquer organismo público confie por contrato ou por mandato actividades de inspecção antes da expedição.

3 - As actividades de inspecção antes da expedição são todas as actividades relacionadas com a verificação da qualidade, da quantidade, do preço, incluindo a taxa de câmbio e as condições financeiras, e/ou da classificação aduaneira das mercadorias destinadas a exportação para o território do Membro utilizador.

4 - A expressão «entidade de inspecção antes da expedição» designa qualquer entidade com a qual um Membro tenha celebrado um contrato ou à qual tenha conferido um mandato para realização das actividades de inspecção antes da expedição (ver nota 1).

(nota 1) Entende-se que esta disposição não obriga os Membros a autorizarem as entidades públicas de outros Membros a realizar actividades de inspecção antes da expedição no seu território.

Artigo 2.º

Obrigações dos Membros utilizadores

Não discriminação

1 - Os Membros utilizadores assegurarão que as actividades de inspecção antes da expedição sejam efectuadas de um modo não discriminatório e que os processos e critérios utilizados na realização dessas actividades sejam objectivos e aplicados numa base de igualdade a todos os exportadores por elas afectados. Os Membros assegurarão a uniformidade da inspecção realizada por todos os inspectores das entidades de inspecção antes da expedição com as quais tenham celebrado contrato ou às quais tenham conferido mandato para o efeito.

Requisitos governamentais

2 - Os Membros utilizadores assegurarão que no decurso das actividades de inspecção antes da expedição relacionadas com as suas disposições legislativas e regulamentares, bem como os requisitos sejam respeitadas, na medida em que sejam pertinentes, as disposições do n.º 4 do artigo III do GATT de 1994.

Local da inspecção

3 - Os Membros utilizadores assegurarão que todas as actividades de inspecção antes da expedição, incluindo a emissão de um relatório de verificação sem comentários ou uma nota de não emissão, sejam realizadas no território aduaneiro a partir do qual as mercadorias são exportadas ou, se a inspecção não puder ser efectuada no território aduaneiro devido à natureza complexa dos produtos em questão ou se as duas partes estiverem de acordo, no território aduaneiro em que as mercadorias são fabricadas.

Normas

4 - Os Membros utilizadores assegurarão que as inspecções da quantidade e da qualidade sejam efectuadas em conformidade com normas definidas pelo vendedor e pelo comprador no contrato de compra e que, na ausência dessas normas, sejam aplicáveis as normas internacionais pertinentes (ver nota 2).

(nota 2) Uma norma internacional é uma norma adoptada por um organismo governamental ou não governamental aberto a todos os Membros, em que uma das actividades reconhecidas se situa no domínio da normalização.

Transparência

5 - Os Membros utilizadores assegurarão a transparência da realização das actividades de inspecção antes da expedição.

6 - Os Membros utilizadores assegurarão que, quando forem pela primeira vez contactados pelos exportadores, as entidades de inspecção antes da expedição lhes forneçam uma lista de todas as informações que lhes são necessárias para darem cumprimento aos requisitos em matéria de inspecção. Quando solicitadas nesse sentido pelos exportadores, as entidades de inspecção antes da expedição prestarão as informações propriamente ditas. Estas informações incluirão uma referência às disposições legislativas e regulamentares dos Membros utilizadores respeitantes às actividades de inspecção antes da expedição, bem como os processos e critérios utilizados para efeitos de inspecção e de verificação dos preços e das taxas de câmbio, os direitos dos exportadores em relação às entidades de inspecção e os processos de recurso enunciados no n.º 21. Não serão aplicados a uma expedição requisitos processuais adicionais ou alterações dos processos existentes, a menos que o exportador em causa seja informado dessas alterações no momento em que a data da inspecção é fixada. Contudo, nas situações de emergência dos tipos referidos nos artigos XX e XXI do GATT de 1994, tais requisitos adicionais ou alterações poderão ser aplicados a uma expedição antes de o exportador deles ter sido informado. Esta assistência não libertará, contudo, os exportadores das suas obrigações em matéria de cumprimento das disposições regulamentares de importação dos Membros utilizadores.

7 - Os Membros utilizadores assegurarão que as informações referidas no n.º 6 sejam colocadas à disposição dos exportadores de um modo adequado, e que os escritórios de inspecção antes da expedição mantidos pelas entidades de inspecção antes da expedição funcionem como pontos de informação no que respeita a tais informações.

8 - Os Membros utilizadores publicarão, no mais curto prazo, todas as disposições legislativas e regulamentares respeitantes às actividades de inspecção antes da expedição, de modo a permitir que os outros governos e os comerciantes delas tomem conhecimento.

Protecção das informações comerciais confidenciais

9 - Os Membros utilizadores assegurarão que as entidades de inspecção antes da expedição tratem todas as informações recebidas no decurso da inspecção antes da expedição como informações comerciais confidenciais, na medida em que tais informações ainda não tenham sido publicadas e não sejam geralmente acessíveis a terceiros ou do domínio público. Os Membros utilizadores assegurarão que as entidades de inspecção antes da expedição apliquem procedimentos para o efeito.

10 - Mediante pedido, os Membros utilizadores fornecerão aos Membros informações respeitantes às medidas por eles adoptadas para dar cumprimento ao disposto no n.º 9. As disposições do presente número não obrigam um Membro a revelar informações confidenciais cuja divulgação comprometeria a eficácia dos programas de inspecção antes da expedição ou prejudicaria os legítimos interesses comerciais de determinadas empresas públicas ou privadas.

11 - Os Membros utilizadores assegurarão que as entidades de inspecção antes da expedição não divulguem informações comerciais confidenciais a terceiros; no entanto, as entidades de inspecção antes da expedição poderão partilhar informações desse tipo com as entidades públicas que lhes confiaram o contrato ou o mandato. Os Membros utilizadores assegurarão que as informações comerciais confidenciais por eles recebidas das entidades de inspecção antes da expedição, às quais confiaram um contrato ou um mandato, sejam protegidas de modo adequado. As entidades de inspecção antes da expedição só partilharão informações comerciais confidenciais com os governos que lhes confiaram um contrato ou um mandato, na medida em que tais informações sejam habitualmente exigidas para cartas de crédito ou outras formas de pagamento ou para fins aduaneiros, de concessão de licenças de importação ou de controlo de câmbios.

12 - Os Membros utilizadores assegurarão que as entidades de inspecção antes da expedição não solicitem aos exportadores a prestação de informações sobre os seguintes elementos:

a) Dados de fabrico relativos a processos patenteados, objecto de licenças ou não divulgados, ou a processos relativamente aos quais tenha sido apresentado um pedido de patente;

b) Dados técnicos não publicados, que não os dados necessários para provar a conformidade com a regulamentação técnica ou com as normas;

c) Fixação dos preços internos, incluindo os custos de fabrico;

d) Níveis dos lucros;

e) Condições dos contratos entre os exportadores e os seus fornecedores, a menos que não seja de outro modo possível para a entidade efectuar a inspecção em questão. Nesses casos, a entidade solicitará unicamente as informações necessárias para o efeito.

13 - As informações referidas no n.º 12, que as sociedades de inspecção antes da expedição não deverão de outro modo solicitar, podem ser voluntariamente divulgadas pelo exportador a fim de ilustrar um caso específico.

Conflitos de interesses

14 - Os Membros utilizadores assegurarão que as entidades de inspecção antes da expedição, tendo igualmente em conta as disposições dos n.os 9 a 13 respeitantes à protecção de informações comerciais confidenciais, apliquem procedimentos tendentes a evitar conflitos de interesses:

a) Entre entidades de inspecção antes da expedição e quaisquer entidades ligadas às entidades de inspecção antes da expedição em questão, incluindo quaisquer entidades em que estas últimas tenham um interesse financeiro ou comercial ou quaisquer entidades que tenham um interesse financeiro nas entidades de inspecção antes da expedição em questão, e cujas entidades de inspecção antes da expedição devam inspeccionar as expedições;

b) Entre entidades de inspecção antes da expedição e outras entidades, incluindo outras entidades sujeitas à inspecção antes da expedição, com excepção das entidades públicas que confiam por contrato ou por mandato as inspecções;

c) Com serviços de entidades de inspecção antes da expedição que se dediquem a actividades que não as necessárias à realização do processo de inspecção.

Atrasos

15 - Os Membros utilizadores assegurarão que as entidades de inspecção antes da expedição evitem atrasos indevidos na inspecção das expedições. Os Membros utilizadores assegurarão que, uma vez acordada uma data para a inspecção entre uma entidade de inspecção antes da expedição e um exportador, a entidade de inspecção antes da expedição proceda à inspecção nessa data, a menos que esta seja alterada de comum acordo entre o exportador e a entidade de inspecção antes da expedição, ou que a entidade de inspecção antes da expedição seja impedida de a efectuar pelo exportador ou por motivo de força maior (ver nota 3).

16 - Os Membros utilizadores assegurarão que, num prazo de cindo dias úteis após a recepção dos documentos finais e a conclusão da inspecção, as entidades de inspecção antes da expedição emitam um relatório de verificação sem comentários ou forneçam, por escrito, uma explicação pormenorizada das razões pelas quais o mesmo não é emitido. Os Membros utilizadores assegurarão que, neste último caso, as entidades de inspecção antes da expedição dêem aos exportadores a possibilidade de apresentarem os seus comentários por escrito, e, se os exportadores assim o solicitarem, tomem as disposições necessárias para a realização de uma nova inspecção o mais rapidamente possível, numa data mutuamente satisfatória.

17 - Os Membros utilizadores assegurarão que, sempre que solicitadas nesse sentido pelos exportadores, as entidades de inspecção antes da expedição procedam, antes da data da inspecção material, a uma verificação preliminar do preço e, se for caso disso, da taxa de câmbio, com base no contrato celebrado entre o exportador e o importador, na factura pro forma e, se for caso disso, no pedido de autorização de importação. Os Membros utilizadores assegurarão que um preço ou uma taxa de câmbio aceite por uma entidade de inspecção antes da expedição, com base em tal verificação preliminar, não seja posta em questão, desde que as mercadorias sejam conformes ao documento de importação e/ou à licença de importação. Assegurarão que, uma vez realizada uma verificação preliminar, as entidades de inspecção antes da expedição informem imediatamente por escrito os exportadores de que aceitaram o preço e/ou a taxa de câmbio ou dêem uma explicação pormenorizada por escrito das razões pelas quais os não aceitaram.

18 - Os Membros utilizadores assegurarão que, a fim de evitar atrasos de pagamento, as entidades de inspecção antes da expedição enviem o mais rapidamente possível aos exportadores ou aos seus representantes designados um relatório de verificação sem comentários.

19 - Os Membros utilizadores assegurarão que em caso de erro de escrita no relatório de verificação sem comentários, as entidades de inspecção antes da expedição corrijam o erro e comuniquem a correcção às partes interessadas, o mais rapidamente possível.

(nota 3) Para efeitos do presente Acordo, entende-se que «motivo de força maior» terá o sentido de «compulsão ou coerção irresistível, sequência imprevisível, de acontecimentos que dispensam da execução de um contrato».

Verificação dos preços

20 - Os Membros utilizadores assegurarão que para evitar a sobrefacturação, a subfacturação e a fraude, as entidades de inspecção antes da expedição procederão à verificação dos preços (ver nota 4) em conformidade com as seguintes orientações:

a) As entidades de inspecção antes da expedição só rejeitarão um preço que figure num contrato entre um exportador e um importador se puderem demonstrar que as suas conclusões relativamente a um preço insatisfatório se baseiam num processo de verificação que é conforme aos critérios enunciados nas alíneas b) a e);

b) Para a verificação do preço de exportação, a entidade de inspecção antes da expedição baseará a sua comparação dos preços no(s) preço(s) de mercadorias idênticas ou similares oferecidas para exportação pelo mesmo país de exportação no mesmo momento ou aproximadamente no mesmo momento, em condições de venda concorrenciais comparáveis, em conformidade com as práticas comerciais habituais, e líquida(s) de qualquer desconto normalmente aplicável. Esta comparação será efectuada do seguinte modo:

i) Serão utilizados unicamente os preços que ofereçam uma base válida de comparação, tendo em conta os factores económicos pertinentes respeitantes ao país de importação e a um ou mais países utilizados para a comparação dos preços;

ii) A entidade de inspecção antes da expedição não se baseará no preço das mercadorias oferecidas para exportação para diferentes países de importação para impor arbitrariamente o preço mais baixo à expedição considerada;

iii) A entidade de inspecção antes da expedição terá em conta os elementos específicos enumerados na alínea c);

iv) Em qualquer fase do processo acima descrito, a entidade de inspecção antes da expedição dará ao exportador a oportunidade de explicar o preço;

c) Quando procederem à verificação do preço, as entidades de inspecção antes da expedição terão devidamente em conta as condições do contrato de venda e os factores de ajustamento geralmente aplicáveis respeitantes à transacção; estes factores incluirão, nomeadamente mas não exclusivamente, o nível comercial e o volume da venda, os períodos e as condições de entrega, as cláusulas de revisão dos preços, as especificações em matéria de qualidade, as características especiais do modelo, as especificações particulares em matéria de expedição ou de embalagem, o volume da encomenda, as vendas a pronto pagamento, as influências sazonais, os direitos de licença ou outros encargos a título da propriedade intelectual, os serviços prestados no âmbito do contrato, caso não sejam habitualmente facturados separadamente; incluirão igualmente certos elementos relacionados com o preço fixado pelo exportador, tais como a relação contratual entre o exportador e o importador;

d) A verificação das despesas de transporte incidirá unicamente no preço correspondente ao meio de transporte utilizado no país de exportação, tal como indicado no contrato de venda;

e) Para efeitos da verificação do preço, não serão utilizados os seguintes elementos:

i) Preço de venda, no país de importação, de mercadorias produzidas nesse país;

ii) Preço de mercadorias de exportação originárias de um país que não o país de exportação;

iii) Custo de produção;

iv) Preço ou valores arbitrários ou fictícios.

(nota 4) As obrigações dos Membros utilizadores no que respeita aos serviços das entidades de inspecção antes da expedição relacionados com a avaliação aduaneira serão as obrigações que aceitaram no GATT de 1994 e nos outros acordos comerciais multilaterais que figuram no Anexo 1A do Acordo OMC.

Procedimentos de recurso

21 - Os Membros utilizadores assegurarão que as entidades de inspecção antes da expedição estabeleçam procedimentos que lhes permitam receber e examinar queixas dos exportadores e pronunciar-se sobre as mesmas e que as informações sobre tais procedimentos sejam colocadas à disposição dos exportadores em conformidade com o disposto nos n.os 6 e 7. Os Membros utilizadores assegurarão que os procedimentos sejam elaborados e aplicados em conformidade com as seguintes orientações:

a) As entidades de inspecção antes da expedição designarão um ou mais funcionários, que estarão disponíveis durante as horas normais de expediente, em cada cidade ou porto em que tenham um escritório administrativo de inspecção antes da expedição, para receberem e examinarem os recursos ou denúncias dos exportadores e pronunciarem-se sobre os mesmos;

b) Os exportadores comunicarão por escrito ao(s) funcionário(s) designado(s) os elementos relativos à transacção específica em causa, a natureza da queixa e uma proposta de solução;

c) O(s) funcionário(s) examinará (examinarão) com compreensão as queixas dos exportadores e tomará (tomarão) uma decisão, o mais rapidamente possível após a recepção da documentação referida na alínea b).

Derrogação

22 - Em derrogação do disposto no artigo 2.º, os Membros utilizadores devem prever que, com excepção das expedições fraccionadas, as expedições de valor inferior a um valor mínimo aplicável a tais expedições, tal como definido pelo Membro utilizador, não sejam inspeccionadas, salvo em circunstâncias excepcionais. Este valor mínimo integrará as informações fornecidas aos exportadores por força do disposto no n.º 6.

Artigo 3.º

Obrigações dos Membros exportadores

Não discriminação

1 - Os Membros exportadores assegurarão que as suas disposições legislativas e regulamentares relacionadas com as actividades de inspecção antes da expedição sejam aplicadas de modo não discriminatório.

Transparência

2 - Os Membros exportadores publicarão, no mais curto prazo, todas as disposições legislativas e regulamentares aplicáveis às actividades de inspecção antes da expedição, de modo a permitir que os outros governos e os comerciantes delas tomem conhecimento.

Assistência técnica

3 - Os Membros exportadores, caso solicitados nesse sentido, oferecer-se-ão para prestar aos Membros utilizadores assistência técnica tendo em vista a realização dos objectivos do presente Acordo em condições mutuamente acordadas (ver nota 5).

(nota 5) Entende-se que tal assistência técnica poderá ser prestada numa base bilateral, plurilateral ou multilateral.

Artigo 4.º

Procedimentos de exame independente

Os Membros incentivarão as entidades de inspecção antes da expedição e os exportadores a procurarem mutuamente uma solução para os seus litígios. Contudo, dois dias úteis após a apresentação da queixa em conformidade com o disposto no n.º 21 do artigo 2.º, qualquer das partes poderá solicitar um exame independente do litígio. Os Membros exportadores tomarão todas as medidas razoáveis de que dispõem a fim de assegurar que, para o efeito, sejam estabelecidos e aplicados os seguintes procedimentos:

a) Esses procedimentos serão administrados por uma entidade independente, constituída conjuntamente por uma organização que represente as entidades de inspecção antes da expedição e uma organização que represente os exportadores para efeitos do presente Acordo;

b) A entidade independente referida na alínea a) elaborará uma lista de peritos que incluirá:

i) Uma secção em que figurarão membros designados por uma organização que represente as entidades de inspecção antes da expedição;

ii) Uma secção em que figurarão membros designados por uma organização que represente os exportadores;

iii) Uma secção em que figurarão peritos comerciais independentes designados pela entidade independente referida na alínea a).

A repartição geográfica dos peritos que figura nesta lista será de molde a permitir tratar rapidamente qualquer litígio suscitado no âmbito destes procedimentos. Esta lista será estabelecida no prazo de dois meses a contar da data de entrada em vigor do Acordo OMC e será actualizada anualmente. A lista será colocada à disposição do público. Será notificada ao Secretariado e distribuída a todos os Membros;

c) Um exportador ou uma entidade de inspecção antes da expedição que deseje declarar um litígio contactará a entidade independente referida na alínea a) e solicitará a constituição de um painel.

A entidade independente será responsável pelo estabelecimento do painel. O painel será composto por três membros. Os membros do painel serão escolhidos de modo a evitar despesas e atrasos inúteis. O primeiro membro será escolhido da secção i) da lista supramencionada, pela entidade de inspecção antes da expedição em questão, sob reserva de esse membro não ter qualquer vínculo com a referida entidade. O segundo membro será escolhido da secção ii) da lista supramencionada, pelo exportador em questão, sob reserva de esse membro não ter qualquer vínculo com o referido exportador. O terceiro membro será escolhido da secção iii) da lista supramencionada, pela entidade independente referida na alínea a). Não será levantada qualquer objecção a um perito comercial independente escolhido da secção iii) da lista supramencionada;

d) O perito comercial independente, escolhido da secção iii) da lista supramencionada, assumirá as funções de presidente do painel. O perito comercial independente tomará as decisões necessárias para assegurar uma resolução rápida do litígio pelo painel, por exemplo, determinar se os factos do caso exigem a realização de uma reunião dos membros do painel e, se assim for, o local de realização da reunião, tendo em conta o local da inspecção em questão;

e) Se as partes no litígio estiverem de acordo, a entidade independente referida na alínea a) poderá escolher da secção iii) da lista supramencionada um perito comercial independente para examinar o litígio em questão. Este perito tomará as decisões necessárias para assegurar uma resolução rápida do litígio, por exemplo, tendo em conta o local de inspecção em questão;

f) O exame terá por objectivo averiguar se, no decurso da inspecção em causa, as partes em litígio cumpriram as disposições do presente Acordo. Os procedimentos decorrerão rapidamente e oferecerão às duas partes a oportunidade de apresentarem os seus pontos de vista pessoalmente ou por escrito;

g) As decisões de um painel constituído por três membros serão tomadas por maioria. A decisão sobre o litígio será pronunciada num prazo de oito dias úteis úteis a contar do pedido de realização do exame independente e será comunicada às partes em litígio. Este prazo poderá ser prorrogado mediante acordo das partes em litígio. O painel ou o perito comercial independente repartirá as despesas segundo o resultado da apreciação do caso;

h) A decisão do painel será vinculativa para a entidade de inspecção antes da expedição e para o exportador que são partes no litígio.

Artigo 5.º

Notificação

Os Membros exportadores fornecerão ao Secretariado o texto das disposições legislativas e regulamentares através das quais o presente Acordo produz efeitos, bem como o texto de quaisquer outras disposições legislativas e regulamentares relativas à inspecção antes da expedição quando o Acordo OMC entrar em vigor para o Membro em questão. Qualquer alteração das disposições legislativas e regulamentares relativas à inspecção antes da expedição só será aplicada após ter sido oficialmente publicada. Após a sua publicação, as alterações serão imediatamente notificadas ao Secretariado. O Secretariado informará os Membros de que estas informações se encontram disponíveis.

Artigo 6.º

Exame

No final do segundo ano a contar da data de entrada em vigor do Acordo OMC e, posteriormente, de três em três anos, a Conferência Ministerial examinará as disposições, a aplicação e o funcionamento do presente Acordo, tendo em conta os seus objectivos e a experiência adquirida com o seu funcionamento. Em consequência desses exames, a Conferência Ministerial poderá alterar as disposições do Acordo.

Artigo 7.º

Consultas

Os Membros realizarão, mediante pedido, consultas com outros Membros relativamente a qualquer questão que afecte o funcionamento do presente Acordo. Nesses casos, são aplicáveis ao presente Acordo as disposições do artigo XXII do GATT de 1994, tal como precisadas e aplicadas pelo Memorando de Entendimento sobre a Resolução de Litígios.

Artigo 8.º

Resolução de litígios

Qualquer litígio entre Membros relativo ao funcionamento do presente Acordo estará sujeito às disposições do artigo XXII do GATT de 1994, tal como precisadas e aplicadas pelo Memorando de Entendimento sobre a Resolução de Litígios.

Artigo 9.º

Disposições finais

1 - Os Membros adoptarão as medidas necessárias para a aplicação do presente Acordo.

2 - Os Membros assegurarão que as suas disposições legislativas e regulamentares não sejam contrárias às disposições do presente Acordo.

ACORDO SOBRE AS REGRAS DE ORIGEM

Os Membros:

Tomando nota de que, em 20 de Setembro de 1986, os Ministros acordaram em que as negociações comerciais multilaterais do Uruguay Round deverão ter por objectivo «assegurar uma maior liberalização e expansão do comércio mundial», «reforçar o papel do GATT» e «aumentar a capacidade de resposta do sistema do GATT à evolução do ambiente económico internacional»;

Desejosos de promover a realização dos objectivos do GATT de 1994;

Reconhecendo que a existência e a aplicação de regras de origem claras e previsíveis facilitam os fluxos do comércio internacional;

Desejosos de assegurar que as regras de origem não criem, por si próprias, obstáculos desnecessários ao comércio;

Desejosos de garantir que as regras de origem não anulem nem comprometam os direitos dos Membros decorrentes do GATT de 1994;

Reconhecendo que é desejável conferir transparência às disposições legislativas e regulamentares, bem como às práticas em matéria de regras de origem;

Desejosos de assegurar que as regras de origem sejam elaboradas e aplicadas de forma imparcial, transparente, previsível, coerente e neutra;

Reconhecendo a existência de um mecanismo de consulta e de procedimentos para a resolução rápida, eficaz e equitativa dos litígios que possam surgir no âmbito do presente Acordo;

Desejosos de harmonizar e clarificar as regras de origem;

acordaram o seguinte:

PARTE I

Definições e âmbito de aplicação

Artigo 1.º

Regras de origem

1 - Para efeitos das partes I a IV do presente Acordo, entende-se por regras de origem as disposições legislativas e regulamentares e as decisões administrativas de aplicação geral que sejam aplicadas por qualquer um dos Membros para determinar o país de origem das mercadorias, contanto que essas regras de origem não se encontrem associadas a regimes comerciais contratuais ou autónomos que impliquem a concessão de preferências pautais que excedam a aplicação do n.º 1 do artigo I do GATT de 1994.

2 - As regras de origem referidas no n.º 1 incluirão todas as regras de origem utilizadas no âmbito dos instrumentos não preferenciais de política comercial, para a aplicação, nomeadamente, do tratamento de nação mais favorecida a título dos artigos I, II, III, XI e XIII do GATT de 1994, de direitos antidumping e de direitos de compensação a título do artigo VI do GATT de 1994, de medidas de salvaguarda a título do artigo XIX do GATT de 1994, das disposições relativas à indicação da origem a título do artigo IX do GATT de 1994 e de restrições quantitativas ou de contingentes pautais discriminatórios. Incluirão ainda as regras de origem utilizadas no âmbito dos contratos públicos e das estatísticas comerciais (ver nota 1).

(nota 1) Fica entendido que esta disposição não prejudica as decisões em matéria de definição de expressões como «ramo de produção nacional», «produtos similares de um ramo de produção nacional» ou expressões equivalentes, em todos os contextos em que estas se apliquem.

PARTE II

Disciplinas para a aplicação das regras de origem

Artigo 2.º

Disciplinas aplicáveis durante o período de transição

1 - Até à completa execução do programa de trabalho de harmonização das regras de origem que é definido na parte IV, os Membros deverão assegurar que:

a) Quando adoptarem decisões administrativas de aplicação geral, sejam claramente definidas as condições que é necessário preencher. Em especial:

i) Nos casos em que é aplicado o critério da mudança de classificação pautal, essa regra de origem e as eventuais excepções à regra devem especificar claramente as subposições ou as posições da nomenclatura pautal a que se referem;

ii) Nos casos em que é aplicado o critério da percentagem ad valorem, o método de cálculo dessa percentagem deve igualmente ser especificado nas regras de origem;

iii) Nos casos em que é exigido o critério da realização de operações de complemento de fabrico ou de transformações, a operação que confere o carácter originário à mercadoria em questão deve ser claramente especificada;

b) Não obstante as medidas ou instrumentos de política comercial a que se encontrem associadas, as respectivas regras de origem não sejam utilizadas para realizar, directa ou indirectamente, objectivos de índole comercial;

c) As regras de origem não produzam, por si próprias, efeitos de restrição, de distorção ou de desorganização do comércio internacional. Não deverão impor condições indevidamente rigorosas, nem exigir, como condição prévia para a determinação do país de origem, a observância de qualquer requisito sem relação com o fabrico ou a transformação. Contudo, poderão ser tidos em conta, para efeitos da aplicação do critério da percentagem ad valorem, em conformidade com a alínea a), os custos que não se relacionem directamente com o fabrico ou a transformação;

d) As regras de origem que aplicarem às importações e às exportações não sejam mais restritivas do que as regras de origem que aplicarem para determinar se uma mercadoria é ou não de origem nacional e não estabeleçam discriminações entre os restantes Membros, independentemente do facto de os fabricantes da mercadoria em causa serem ou não empresas filiais (ver nota 2);

e) As suas regras de origem sejam administradas de forma coerente, uniforme, imparcial e razoável;

f) As suas regras de origem se baseiem em critérios positivos. Poderão ser aceites regras de origem que definam os factores que não conferem a origem (critério negativo) enquanto elemento de clarificação de um critério positivo ou em casos específicos, em que não seja necessária uma determinação positiva da origem;

g) As suas disposições legislativas e regulamentares e as decisões judiciais e administrativas de aplicação geral relativas às regras de origem sejam publicadas como se estivessem sujeitas às disposições do n.º 1 do artigo X do GATT de 1994 e em conformidade com esse artigo;

h) A pedido de um exportador, de um importador ou de qualquer outra pessoa que para tal tenha motivos válidos e, contanto que tenham sido comunicadas todas as informações necessárias para o efeito, seja fornecida, no mais curto prazo de tempo e o mais tardar 150 dias (ver nota 3) após a apresentação do pedido, uma apreciação sobre a origem que atribuiriam a uma determinada mercadoria. Os pedidos de apreciação serão aceites antes do início das transacções comerciais respeitantes à mercadoria em causa, podendo ser aceites em qualquer momento posterior. As apreciações terão uma validade de três anos, desde que permaneçam semelhantes os factos e as condições em que se basearam, incluindo as regras de origem. Contanto que as partes interessadas tenham sido previamente informadas, as apreciações deixarão de ser válidas, sempre que, no âmbito das revisões previstas na alínea j), seja tomada uma decisão contrária. As apreciações devem ser tornadas públicas, sob reserva do disposto na alínea k);

i) Quando introduzirem alterações nas suas regras de origem ou adoptarem novas regras de origem, essas modificações não sejam aplicadas com efeitos retroactivos, tal como definido nas respectivas disposições legislativas ou regulamentares e sem prejuízo destas;

j) Qualquer decisão administrativa que tomem, em matéria de determinação da origem, possa ser revista no mais curto prazo de tempo por tribunais ou procedimentos judiciais, arbitrais ou administrativos, independentes da autoridade que efectuou a determinação, que poderão modificar ou anular essa determinação;

k) Qualquer informação de natureza confidencial ou fornecida a título confidencial para efeitos de aplicação das regras de origem seja tratada como estritamente confidencial pelas autoridades em causa, que não a divulgarão sem a autorização expressa da pessoa ou do Estado que a comunicou, excepto na medida em que tal possa ser exigido no contexto de processos judiciais.

(nota 2) No tocante às regras de origem aplicadas no âmbito dos contratos públicos, esta disposição não criará obrigações adicionais, para além das que os Membros já assumiram a título do GATT de 1994.

(nota 3) No tocante aos pedidos apresentados no decurso do primeiro ano seguinte à data de entrada em vigor do Acordo OMC, apenas será exigido aos Membros que forneçam essas apreciações o mais rapidamente possível.

Artigo 3.º

Disciplinas aplicáveis após o período de transição

Tendo em conta que todos os Membros têm por objectivo alcançar, como resultado do programa de trabalho de harmonização definido na parte IV, o estabelecimento de regras de origem harmonizadas, logo que sejam aplicados os resultados desse programa, os Membros deverão assegurar que:

a) As regras de origem sejam aplicadas de forma igual para todos os fins referidos no artigo 1.º;

b) Nos termos das suas origens, o país a determinar como sendo o país de origem de uma mercadoria seja quer o país onde a mercadoria foi inteiramente obtida, quer, quando mais de um país intervier na produção dessa mercadoria, o país onde tenha sido realizada a última, transformação substancial;

c) As regras de origem que aplicarem às importações e às exportações não sejam mais restritivas do que as regras de origem que aplicarem para determinar se uma mercadoria é ou não de origem nacional e não estabeleçam discriminações entre os restantes Membros, independentemente do facto de os fabricantes de mercadoria em causa serem ou não empresas filiais,

d) Ás suas regras de origem sejam administradas de forma coerente, uniforme, imparcial e razoável;

e) As suas disposições legislativas, regulamentares e as decisões judiciais e administrativas de aplicação geral, relativas às regras de origem sejam publicadas como se estivessem sujeitas às disposições do n.º 1 do artigo X do GATT de 1994 e em conformidade com esse artigo;

f) A pedido de um exportador, de um importador ou de qualquer outra pessoa que para tal tenha motivos válidos e, contando que tenham sido comunicadas todas as informações, necessárias para o efeito, seja fornecida, no mais curto prazo de tempo e o mais tardar 150 dias após a apresentação do pedido, uma apreciação sobre a origem que atribuíram a uma determinada mercadoria. Os pedidos de apreciação serão aceites antes do início das transacções comerciais respeitantes à mercadoria em causa, podendo ser aceites em qualquer momento posterior. As apreciações terão uma validade de três anos, desde que permaneçam semelhantes os factos e as condições em que se basearam, incluindo as regras de origem. Contando que as partes interessadas tenham sido previamente informadas, as apreciações deixarão de ser válidas, sempre que, no âmbito das revisões previstas na alínea h), seja tomada uma decisão contrária. As apreciações devem ser tornadas públicas, sob reserva do disposto na alínea i);

g) Quando introduzirem alterações nas suas regras de origem ou adoptarem novas regras de origem, essas modificações não sejam aplicadas com efeitos retroactivos, tal como determinado pelas respectivas disposições legislativas ou regulamentares e sem prejuízo destas;

h) Qualquer decisão administrativa que tomem, em matéria de determinação da origem, possa ser revista no mais curto prazo de tempo por tribunais ou procedimentos judiciais, arbitrais ou administrativos, independentes da autoridade que efectuou a determinação, que poderão modificar ou anular essa determinação;

i) Qualquer informação de natureza confidencial ou fornecida a título confidencial para efeitos de aplicação das regras de origem seja tratada como estritamente confidencial pelas autoridades em causa, que não a divulgação sem a autorização expressa da pessoa ou do Estado que a comunicou, excepto na medida em que tal possa ser exigido, no contexto de processos judiciais.

PARTE III

Disposições relativas aos procedimentos de notificação, exame, consulta e resolução de litígios

Artigo 4.º

Instituições

1 - É instituído um Comité das Regras de Origem (designado por «Comité» no presente Acordo), composto por representantes de cada um dos Membros. O Comité elegerá o seu presidente e reunir-se-á sempre que necessário e, pelo menos, uma vez por ano, a fim de dar aos Membros a possibilidade de procederem a consultas sobre questões relativas ao, funcionamento das partes I, II, III e IV ou à prossecução dos objectivos definidos nessas partes, e a fim de exercer as restantes atribuições que lhe serão conferidas por força do presente Acordo ou pelo Conselho do Comércio de Mercadorias. Sempre que necessário, o Comité solicitará informações e pareceres ao Comité Técnico referido no n.º 2 sobre questões relacionadas com o presente Acordo. O Comité pode igualmente solicitar ao Comité Técnico que efectue qualquer outro trabalho que considere necessário para a prossecução dos objectivos do Acordo acima mencionados. O secretário do Comité será assegurado pelo Secretariado da OMC.

2 - Será instituído um Comité Técnico das Regras de Origem (designado por «Comité Técnico» no presente Acordo), que funcionará sob os auspícios do Conselho de Cooperação Aduaneira (CCA), tal como é referido no Anexo I. O Comité Técnico efectuará os trabalhos técnicos previstos na parte IV e prescritos no Anexo I. Sempre que necessário, o Comité Técnico solicitará informações e pareceres ao Comité sobre questões relacionadas com o presente Acordo. O Comité Técnico pode igualmente solicitar ao Comité que efectue qualquer outro trabalho que considere necessário para a prossecução dos objectivos do Acordo acima mencionados. O secretariado do Comité Técnico será assegurado pelo Secretariado do CCA.

Artigo 5.º

Informação e procedimentos de alteração e de adopção de novas regras de origem

1 - Cada Membro comunicará ao Secretariado, no prazo de 90 dias a contar da data da entrada em vigor do Acordo OMC relativamente a esse Membro, as suas regras de origem e as suas decisões judiciais e administrativas de aplicação geral relativas às regras de origem aplicáveis nessa data. Se, por inadvertência, uma regra se origem não for comunicada, o Membro em questão comunica-la-á imediatamente após esse facto ser conhecido. Serão distribuídas aos Membros, pelo Secretariado, lista das informações recebidas, que se encontram disponíveis nesse Secretariado.

2 - Durante o período referido no artigo 2.º, os Membros que introduzam alterações, que não sejam alterações mínimas, nas suas regras de origem ou que adoptem novas regras de origem, as quais, para efeitos do presente artigo, incluirão todas as regras de origem mencionadas no n.º 1 e não comunicadas ao Secretariado, deverão publicar um aviso para o efeito, pelo menos, 60 dias antes da entrada em vigor da regra alterada ou da nova regra, por, forma a permitir que as partes interessadas tomem conhecimento da sua intenção de alterar uma regra de origem ou de adoptar uma nova regra, salvo se surgirem ou se existir o risco de surgirem circunstâncias excepcionais para um Membro. Nesses casos excepcionais, o Membro em questão publicará a regra alterada ou a nova regra no mais curto prazo de tempo.

Artigo 6.º

Exame

1 - O Comité examinará anualmente a aplicação e o funcionamento das partes II e III do presente Acordo, tendo em conta os seus objectivos. O Comité informará anualmente o Conselho do Comércio de Mercadorias dos factos ocorridos durante o período sobre o qual incide o exame.

2 - O Comité examinará as disposições das partes I, II e III e proporá as alterações necessárias para ter em conta os resultados do programa de trabalho de harmonização.

3 - O Comité, em colaboração com o Comité Técnico, instituirá um mecanismo para estudar e propor alterações aos resultados do programa de trabalho de harmonização, tendo em conta os objectivos e os princípios definidos no artigo 9.º Poder-se-á tratar, nomeadamente, de casos em que as regras de origem devam ser mais operacionais ou necessitem de ser actualizadas para ter em conta novos processos de produção resultantes de uma mudança tecnológica.

Artigo 7.º

Consultas

São aplicáveis ao presente Acordo as disposições do artigo XXII do GATT de 1994, tal como previstas e aplicadas pelo Memorando de Entendimento sobre a Resolução de Litígios.

Artigo. 8.º

Resolução de litígios

São aplicáveis ao presente Acordo as disposições do artigo XXIII do GATT de 1994, tal como previstas e aplicadas pelo Memorando de Entendimento sobre a, Resolução de Litígios.

PARTE IV

Harmonização das regras de origem

Artigo 9.º

Objectivos e princípios

1 - Com o objectivo de harmonizar as regras de origem e, designadamente, reforçar a segurança na condução do comércio mundial, a Conferência Ministerial deverá executar, conjuntamente com o CCA, o programa de trabalho seguidamente apresentado, com base nos seguintes princípios:

a) As regras de origem devem ser aplicadas de forma igual para todos os fins referidos no artigo 1.º;

b) As regras de origem devem estipular que o país a determinar como sendo o país de origem de uma mercadoria será quer o país onde a mercadoria foi inteiramente obtida, quer, quando mais de um país intervier na produção dessa mercadoria, o país onde foi realizada a última transformação substancial;

c) As regras de origem devem ser objectivas, compreensíveis e previsíveis;

d) Não obstante as, medidas ou instrumentos a que se encontrem associadas, as regras de origem não devem ser utilizadas para realizar, directa ou indirectamente, objectivos de índole comercial. Não devem provocar, por si próprias, efeitos de restrição, de distorção, ou de desorganização do comércio internacional. Não devem impor condições indevidamente rigorosas, nem exigir, como condição prévia para a determinação do país de origem, a observância de qualquer requisito sem relação com o fabrico ou a transformação. Contudo, poderão ser tidos em conta, para efeitos de aplicação do critério da percentagem ad valorem, custos que não se relacionem directamente com o fabrico ou a transformação;

e) As regras de origem devem ser administradas de forma coerente, uniforme, imparcial e razoável;

f) As regras de origem devem basear-se em critérios positivos, Poderão ser utilizados critérios negativos enquanto elemento de clarificação de um critério positivo.

Programa de trabalho

2 - a) O programa de trabalho será iniciado no mais curto prazo de tempo após a entrada em vigor do Acordo OMC, devendo ser concluído no, prazo de três anos.

b) Os órgãos para conduzir esses trabalhos serão o Comité e o Comité Técnico previstos no artigo 4.º

c) Para que o CCA, disponha de informações pormenorizadas, o Comité solicitará ao Comité Técnico que comunique

as 1 suas interpretações e pareceres resultantes dos trabalhos que a seguir se descrevem, com base nos princípios enunciados no n.º 1. A fim de garantir a conclusão atempada do programa de trabalho de harmonização, os trabalhos serão conduzidos por sector de produtos, com base nos diversos capítulos ou secções da Nomenclatura do Sistema Harmonizado (SH).

i) Mercadorias inteiramente obtidas e operações ou manipulações mínimas. - O Comité Técnico elaborará definições harmonizadas:

- Das mercadorias que devem ser consideradas como tendo sido inteiramente obtidas num país. Este trabalho deverá ser tão pormenorizado quanto possível;

- Das operações ou manipulações mínimas que, por si só, não conferem a origem a uma mercadoria.

Os resultados destes trabalhos serão submetidos ao Comité no prazo de três meses a partir da data da recepção do pedido apresentado pelo Comité.

ii) Transformação substancial - Mudança de classificação pautal:

- O Comité Técnico apreciará e determinará de forma aprofundada, com base no critério de transformação substancial, a possibilidade de utilizar a mudança de subposição, ou de posição pautal aquando da elaboração de regras de origem relativas a produtos específicos ou a sectores de produtos, bem como, se for caso disso, o nível de mudança mínima, dentro da nomenclatura, que satisfaz esse critério.

- O Comité Técnico repartirá os trabalhos acima referidos por produto, tendo em conta a divisão em capítulos ou secções da Nomenclatura do SH, por forma a submeter os resultados do seu trabalho ao Comité numa base, pelo menos, trimestral. O Comité Técnico deverá concluir os trabalhos acima mencionados no prazo de um ano e três meses a partir da data de recepção do pedido apresentado pelo Comité.

iii) Transformação substancial. - Critérios suplementares. - Depois de ter concluído os trabalhos referidos na alínea ii) para cada sector ou categoria específica de produtos relativamente ao qual a utilização exclusiva da Nomenclatura do SH não permita determinar se houve transformação substancial, o Comité Técnico:

- Apreciará e determinará de forma aprofundada, com base no critério de transformação substancial, a possibilidade de utilizar, de forma exclusiva ou complementar, outros critérios, incluindo o da percentagem ad valorem (ver nota 4) e ou o de operações de transformação ou de complemento de fabrico (ver nota 5), aquando da elaboração de regras de origem relativas a produtos específicos e/ou a sectores de produtos;

- Fornecerá, eventualmente, explicações sobre as suas propostas;

- Repartirá os trabalhos acima referidos por produto, tendo em conta a divisão em capítulos ou secções da Nomenclatura do SH, por forma a submeter os resultados do seu trabalho ao Comité numa base, pelo menos, trimestral. O Comité Técnico deverá concluir os trabalhos acima mencionados no prazo de dois anos e três meses a partir da data de recepção do pedido apresentado pelo Comité.

(nota 4) Quando for prescrito o critério da percentagem ad valorem, o método de cálculo dessa percentagem será igualmente indicado nas regras de origem.

(nota 5) Quando for prescrito o critério da operação de transformação ou de complemento de fabrico, a operação que confere a origem ao produto em questão deverá ser especificada de modo preciso.

Papel do Comité

3 - Com base nos princípios enunciados no n.º 1:

a) O Comité apreciará periodicamente as interpretações e os pareceres do Comité Técnico, de acordo com os prazos previstos nas alíneas i), ii) e iii) da alínea c) do n.º 2, tendo em vista aprovar essas interpretações e pareceres. O Comité poderá solicitar ao Comité Técnico que precise ou aprofunde os seus trabalhos e/ou desenvolva novas estratégias. Por forma a auxiliar o Comité Técnico, o Comité deverá justificar os motivos que o levaram a solicitar trabalhos adicionais e, se for caso disso, sugerir estratégias alternativas;

b) Depois de ter concluído os trabalhos previstos nas alíneas i), ii) e iii) da alínea c) do n.º 2, o Comité deverá apreciar os resultados quanto à sua coerência global.

Resultados do programa de trabalho de harmonização e trabalhos posteriores

4 - A Conferência Ministerial estabelecerá os resultados do programa de trabalho de harmonização num anexo que fará parte integrante do presente Acordo (ver nota 6). A Conferência Ministerial fixará um prazo para a entrada em vigor desse anexo.

(nota 6) Serão estudados, concomitantemente, os convénios relativos à resolução de litígios relacionados com a classificação aduaneira.

ANEXO I

COMITÉ TÉCNICO DAS REGRAS DE ORIGEM

Atribuições

1 - As atribuições permanentes do Comité Técnico serão as seguintes:

a) A pedido de qualquer membro do Comité Técnico, examinar os problemas técnicos específicos que surjam na administração quotidiana das regras de origem dos Membros e emitir pareceres consultivos sobre as soluções adequadas, com base nos factos apresentados;

b) Dar informações e pareceres, sobre qualquer questão relativa à determinação da origem das mercadorias, que sejam solicitados por qualquer Membro ou pelo Comité;

c) Elaborar e difundir relatórios periódicos acerca dos aspectos técnicos do funcionamento e da situação do presente Acordo;

d) Efectuar um exame anual dos aspectos técnicos da aplicação e do funcionamento das partes II e III.

2 - O Comité Técnico exercerá quaisquer outras atribuições que lhe sejam confiadas pelo Comité.

3 - O Comité Técnico procurará concluir, num prazo razoavelmente curto, os seus trabalhos sobre questões específicas, nomeadamente as que lhe forem submetidas pelos Membros ou pelo Comité.

Representação

4 - Cada Membro terá o direito de se fazer representar no Comité Técnico. Cada Membro poderá designar um delegado e um ou vários suplentes para o representar no Comité Técnico. Qualquer Membro assim representado no Comité Técnico é adiante designado por «membro» do Comité Técnico. Os representantes dos membros do Comité Técnico poderão ser assistido por conselheiros, nas reuniões do Comité Técnico. O Secretariado da OMC poderá igualmente assistir a essas reuniões com o estatuto de observador.

5 - Os membros do Conselho de Cooperação Aduaneira que não sejam Membros da OMC poderão fazer-se representar nas reuniões do Comité Técnico por um delegado e um ou vários suplentes. Esses representantes assistirão às reuniões do Comité Técnico como observadores.

6 - Sob reserva da aprovação do presidente do Comité Técnico, o Secretário-Geral do Conselho de Cooperação Aduaneira (designado por «Secretário-Geral» no presente Anexo) poderá convidar representantes de governos que não sejam Membros da OMC, nem membros do CCA, bem como representantes de organizações governamentais e profissionais internacionais, para assistirem às reuniões do Comité Técnico como observadores.

7 - As designações dos delegados, suplentes e conselheiros para as reuniões do Comité Técnico serão comunicadas ao Secretário-Geral.

Reuniões

8 - O Comité Técnico reunir-se-á sempre que necessário, mas, pelo menos, uma vez por ano.

Procedimentos

9 - O Comité Técnico elegerá o seu presidente e estabelecerá o seu regulamento interno.

ANEXO II

DECLARAÇÃO COMUM RELATIVA ÀS REGRAS DE ORIGEM PREFERENCIAIS

1 - Reconhecendo que alguns Membros aplicam regras de origem preferenciais distintas das regras de origem não referenciais, os Membros acordam no seguinte.

2 - Para efeitos da presente Declaração Comum, entende-se por regras de origem preferenciais as disposições legislativas e regulamentares e as decisões administrativas de aplicação geral que sejam aplicadas por qualquer um dos Membros para determinar se as mercadorias podem aceder ao benefício do tratamento preferencial no âmbito de regimes comerciais contratuais ou autónomos que impliquem a concessão de preferências pautais, que excedam a aplicação do n.º 1 do artigo I do GATT de 1994.

3 - Os Membros acordam em assegurar que:

a) Quando adoptarem decisões administrativas de aplicação geral, sejam claramente definidas as condições que é necessário preencher. Em especial:

i) Nos casos em que é aplicado o critério da mudança de classificação pautal, essa regra de origem preferencial e as eventuais excepções à regra devem especificar claramente as subposições ou as posições da nomenclatura pautal a que se referem;

ii) Nos casos em que é aplicado o critério da percentagem ad valorem, o método de cálculo dessa percentagem deve igualmente ser especificado nas regras de origem perferenciais;

iii) Nos casos em que é exigido o critério da realização de operações de complemento de fabrico ou de transformações, a operação que confere a origem preferencial à mercadoria em questão deve ser claramente especificada;

b) As suas regras de origem preferenciais se baseiem em critérios positivos. Poderão ser aceites regras de origem preferenciais que definam os factores que não conferem a origem preferencial (critério negativo) enquanto elemento de clarificação de um critério positivo ou em casos específicos, em que não seja necessária uma determinação positiva da origem preferencial;

c) As suas disposições legislativas e regulamentares e as decisões judiciais e administrativas de aplicação geral relativas às regras de origem preferenciais sejam publicadas como se estivessem sujeitas às disposições do n.º 1 do artigo X do GATT de 1994 e em conformidade com esse artigo;

d) A pedido de um exportador, de um importador ou de qualquer outra pessoa que para tal tenha motivos válidos e contanto que tenham sido comunicadas as informações necessárias para o efeito, seja fornecida, no mais curto prazo de tempo e o mais tardar 150 dias (ver nota 7) após a apresentação do pedido, uma apreciação sobre a origem preferencial que atribuiriam a uma determinada mercadoria. Os pedidos de apreciação serão aceites antes do início das transacções comerciais respeitantes à mercadoria em causa, podendo ser aceites em qualquer momento posterior. As apreciações terão uma validade de três anos, desde que permaneçam semelhantes os factos e as condições em que se basearam, incluindo as regras de origem. Contanto que as partes interessadas tenham sido previamente informadas, as apreciações deixarão de ser válidas sempre que, no âmbito das revisões previstas na alínea f), seja tomada uma decisão contrária. As apreciações devem ser tornadas públicas, sob reserva do disposto na alínea g);

e) Quando introduzirem alterações nas suas regras de origem preferenciais ou adoptarem novas regras de origem, essas modificações não sejam aplicadas com efeitos retroactivos, tal como definido nas respectivas disposições legislativas ou regulamentares e sem prejuízo destas;

f) Qualquer decisão administrativa que tomem, em matéria de determinação da origem preferencial, possa ser revista no mais curto prazo de tempo por tribunais ou procedimentos judiciais, arbitrais ou administrativos, independentes da autoridade que efectuou a determinação, que poderão modificar ou anular essa determinação;

g) Qualquer informação de natureza confidencial ou fornecida a título confidencial para efeitos de aplicação das regras de origem preferenciais seja tratada como estritamente confidencial pelas autoridades em causa, que não a divulgarão sem autorização expressa da pessoa ou do Estado que a comunicou, excepto na medida em que tal possa ser exigido no contexto de processos judiciais.

(nota 7) No tocante aos pedidos apresentados no decurso do primeiro ano seguinte à entrada em vigor do Acordo OMC, apenas será exigido aos Membros que forneçam essas apreciações o mais rapidamente possível.

4 - Os Membros acordam em comunicar ao Secretariado, no mais curto prazo de tempo, as suas regras de origem preferenciais, incluindo uma relação dos acordos preferenciais aos quais essas regras são aplicáveis, bem como as suas decisões judiciais e administrativas de aplicação geral, relativas às suas regras de origem preferenciais aplicáveis na data de entrada em vigor do Acordo OMC, para o Membro em questão. Além disso, os Membros acordam em comunicar ao Secretariado, no mais curto prazo de tempo, qualquer alteração que introduzam nas suas regras de origem preferenciais ou qualquer nova regra de origem preferencial que adoptem. Serão distribuídas aos Membros, pelo Secretariado, listas das informações recebidas, que se encontram disponíveis nesse Secretariado.

ACORDO SOBRE OS PROCEDIMENTOS EM MATÉRIA DE LICENÇAS DE IMPORTAÇÃO

Os Membros:

Tendo em conta as Negociações Comerciais Multilaterais;

Desejando prosseguir os objectivos do GATT de 1994;

Tendo em conta as necessidades comerciais, financeiras e de desenvolvimento específicas dos países em desenvolvimento Membros;

Reconhecendo a utilidade das licenças de importação automáticas para certos fins e que tais licenças não deveriam ser utilizadas para limitar as trocas comerciais;

Reconhecendo que as licenças de importação podem ser utilizadas para administração de medidas tais como as adoptadas por força das disposições pertinentes do GATT de 1994;

Considerando as disposições do GATT de 1994 que são aplicáveis aos procedimentos em matéria de licenças de importação;

Desejando assegurar que os procedimentos em matéria de licenças de importação não sejam utilizados de um modo contrário aos princípios e obrigações enunciados no GATT de 1994;

Reconhecendo que o fluxo do comércio internacional poderia ser dificultado pela utilização inadequada dos procedimentos em matéria de licenças de importação;

Convencidos de que os regimes de licenças de importação, em especial os regimes de licenças de importação não automáticas, deveriam ser aplicados de um modo transparente e previsível;

Reconhecendo que os procedimentos em matéria de licenças não automáticas não deveriam impor encargos administrativos mais pesados do que o absolutamente necessário para administrar a medida pertinente;

Desejando simplificar os procedimentos e práticas administrativas utilizados no comércio internacional e garantir a sua transparência, bem como assegurar uma aplicação e uma administração justas e equitativas de tais procedimentos e práticas;

Desejando proporcionar o estabelecimento de um mecanismo de consulta e a resolução rápida, eficaz e equitativa dos litígios decorrentes da aplicação do presente Acordo;

acordam no seguinte:

Artigo 1.º

Disposições gerais

1 - Para efeitos do presente Acordo, entende-se por «licenças de importação» os procedimentos administrativos (ver nota 1) utilizados para a aplicação de regimes de licenças de importação que exijam, como condição prévia à importação no território aduaneiro do Membro importador, a apresentação ao organismo administrativo competente de um pedido ou de outros documentos (distintos dos requisitos para fins aduaneiros).

2 - Os Membros assegurarão que os procedimentos administrativos utilizados para aplicar regimes de licença de importação sejam conformes às disposições pertinentes do GATT de 1994, incluindo os seus anexos e protocolos, tal como interpretados pelo presente Acordo, a fim de impedir distorções dos fluxos comerciais susceptíveis de resultar de uma aplicação inadequada desses procedimentos, tendo em conta os objectivos de desenvolvimento económico e as necessidades financeiras e comerciais dos países em desenvolvimento Membros (ver nota 2).

3 - As regras relativas aos procedimentos em matéria de licenças de importação serão neutras na sua aplicação e administradas de um modo justo e equitativo.

4 - a) As regras e todas as informações relativas aos procedimentos de apresentação dos pedidos, incluindo a legitimidade das pessoas, empresas ou instituições para apresentarem tais pedidos, o(s) órgão(s) administrativo(s) ao qual (aos quais) se deve(m) dirigir, bem como as listas dos produtos sujeitos a licença, constarão das publicações notificadas ao Comité das Licenças de Importação previsto no artigo 4.º (designado por «o Comité» no presente Acordo), de modo a permitir que os governos (ver nota 3) e os comerciantes delas tomem conhecimento. Tal publicação será efectuada, sempre que possível, 21 dias antes da data em que os requisitos devem ser cumpridos e em caso algum após essa data. Qualquer excepção, derrogação ou alteração das regras relativas aos procedimentos de licenças ou às listas dos produtos sujeitos a licença de importação será igualmente publicada do mesmo modo e nos mesmos prazos acima especificados. Exemplares dessas publicações serão colocados à disposição do Secretariado.

b) Os Membros que desejem apresentar observações por escrito terão a possibilidade de as discutir mediante um pedido nesse sentido. O Membro em causa tomará devidamente em consideração essas observações, bem como os resultados das discussões.

5 - Os formulários para apresentação dos pedidos e, se for caso disso, para a sua renovação serão os mais simples possível. Aquando da apresentação do pedido poderão ser exigidos os documentos e informações considerados estritamente necessários para o bom funcionamento do regime de licenças.

6 - Os procedimentos relativos à apresentação dos pedidos e, se for caso disso, à sua renovação, serão o mais simples possível. Os requerentes deverão dispor de um prazo razoável para a apresentação dos pedidos de licenças. Quando tenha sido afixada uma data de encerramento, o prazo deverá ser de, pelo menos, 21 dias, com possibilidade de prorrogação no caso de, nesse prazo, ter sido recebido um número insuficiente de pedidos. Para apresentação de um pedido, o requerente deverá ter de se dirigir unicamente a um órgão administrativo. Quando seja estritamente indispensável dirigir-se a mais de um órgão administrativo, o requerente não deverá dirigir-se a mais de três desses órgãos.

7 - Nenhum pedido será rejeitado em virtude de pequenos erros na documentação que não alterem os dados de base nela contidos. Não será imposta qualquer sanção superior à necessária para servir simplesmente de advertência relativamente a omissões ou erros na documentação ou nos procedimentos em que não exista manifestamente intenção fraudulenta ou negligência grave.

8 - As importações efectuadas sob licença não serão recusadas devido a pequenas diferenças de valor, de volume ou de peso relativamente aos montantes indicados na licença, em consequência de diferenças ocorridas durante o transporte, diferenças próprias do carregamento a granel das mercadorias ou de outras pequenas diferenças compatíveis com as práticas comerciais normais.

9 - As divisas necessárias ao pagamento das importações efectuadas sob licença serão colocadas à disposição dos titulares de licenças na mesma base que relativamente aos importadores de mercadorias para as quais não é exigida licença de importação.

10 - No que respeita às excepções relativas à segurança, são aplicáveis as disposições do artigo XXI do GATT de 1994.

11 - As disposições do presente Acordo não obrigarão nenhum Membro a revelar informações confidenciais cuja divulgação possa constituir um obstáculo à aplicação das leis, seja de outro modo contrária ao interesse público ou susceptível de causar prejuízo aos interesses comerciais legítimos de empresas públicas ou privadas.

(nota 1) Os procedimentos designados pelo termo «licenças», bem como ouros procedimentos administrativos similares.

(nota 2) Nenhuma disposição do presente Acordo poderá ser entendida como implicando que a base, o âmbito de aplicação ou a vigência de uma medida aplicada através de um processo de licenças possa ser posta em questão por força do presente Acordo.

(nota 3) Para efeitos do presente Acordo, considera-se que o termo «governos» compreende as autoridades competentes das Comunidades Europeias.

Artigo 2.º

Licenças de importação automáticas (ver nota 4)

1 - Por licenças de importação automáticas entende-se as licenças de importação que são concedidas em todos os casos, na sequência de apresentação de um pedido e em conformidade com os requisitos da alínea a) do n.º 2.

2 - Para além das disposições dos n.os 1 a 11 do artigo 1.º e do n.º 1, aos procedimentos de licenças de importação automáticas serão aplicáveis as seguintes disposições (ver nota 5):

a) Os procedimentos de licenças automáticas não serão administrados de modo que se exerçam efeitos restritivos nas importações sujeitas a licença automática. Considerar-se-á que os procedimentos de licenças automáticas exercem efeitos restritivos sobre o comércio, salvo, nomeadamente, nas seguintes condições:

i) Todas as pessoas, empresas ou instituições que reúnam as condições legais impostas pelo Membro importador por efectuar operações de importação relativas a produtos sujeitos a licença automática tenham igual direito de solicitar e obter licenças de importação;

ii) Os pedidos de licenças possam ser apresentados em qualquer dia útil antes do desalfandegamento das mercadorias;

iii) Os pedidos de licenças apresentados na forma adequada e completa sejam imediatamente deferidos no momento da sua recepção, desde que tal seja administrativamente possível, e, em qualquer caso, num prazo máximo de 10 dias úteis;

b) Os Membros reconhecem que as licenças de importação automáticas podem ser necessárias quando não existam outros procedimentos adequados. As licenças de importação automáticas podem ser mantidas enquanto subsistam as circunstâncias que motivaram a sua introdução e enquanto os objectivos administrativos subjacentes não possam ser atingidos de um modo mais adequado.

(nota 4) Os procedimentos de licenças de importação que imponham o depósito de uma caução, mas que não exerçam efeitos restritivos nas importações, devem ser considerados como abrangidos pelo disposto nos n.os 1 e 2.

(nota 5) Um país em desenvolvimento Membro, que não um país em desenvolvimento Membro que era Parte no Acordo sobre os Procedimentos em Matéria de Licenças de Importação de 12 de Abril de 1979, ao qual os requisitos das subalíneas ii) e iii) da alínea a) causem dificuldades específicas, poderá, após notificar o Comité, adiar a aplicação dessas subalíneas por um período não superior a dois anos a contar da data da entrada em vigor do Acordo OMC para o Membro em questão.

Artigo 3.º

Licenças de importação não automáticas

1 - Para além das disposições dos n.os 1 a 11 do artigo 1.º, aos procedimentos de licenças de importação não automáticas serão aplicáveis as disposições seguidamente enunciadas. Por procedimentos de licenças de importação não automáticas entende-se as licenças de importação que não são abrangidas pela definição enunciada no n.º 1 do artigo 2.º

2 - As licenças não automáticas não deverão exercer, relativamente às importações, efeitos restritivos ou de distorção adicionais aos causados pela imposição da restrição. Os procedimentos de licenças não automáticas deverão corresponder, quanto ao seu âmbito de aplicação e à sua vigência, à medida que se destinem a aplicar e não deverão impor encargos administrativos mais pesados do que o absolutamente necessário para administrar a medida.

3 - No caso de requisitos em matéria de licenças com outros fins que não a aplicação de restrições quantitativas, os Membros publicarão informações suficientes para que os outros Membros e os comerciantes tenham conhecimento da base de concessão e/ou atribuição das licenças.

4 - Quando um Membro confira a pessoas, empresas ou instituições a possibilidade de solicitarem excepções ou derrogações relativamente ao cumprimento de um requisito em matéria de licenças, mencionará tal facto nas informações publicadas em conformidade com o disposto no n.º 4 do artigo 1.º, indicando, além disso, o modo como deve ser apresentado um tal pedido, e, na medida do possível, as circunstâncias em que os pedidos serão tomados em consideração.

5 - a) Os Membros fornecerão, a pedido de qualquer Membro interessado no comércio do produto em causa, todas as informações pertinentes no que respeita:

i) À administração das restrições;

ii) Às licenças de importação concedidas no decurso de um período recente;

iii) À repartição dessas licenças entre os países fornecedores;

iv) Sempre que possível, às estatísticas de importação (em valor e/ou volume) relativas aos produtos sujeitos a licença de importação. Não se espera dos países em desenvolvimento que assumam a este título encargos administrativos ou financeiros adicionais.

b) Os Membros que administrem contingentes através de licenças publicarão o volume total e/ou o valor total dos contingentes a aplicar, as suas datas de abertura e de encerramento bem como qualquer alteração dos mesmos, nos prazos especificados no n.º 4 do artigo 1.º e de um modo que permita que os governos e os comerciantes deles tomem conhecimento.

c) No caso dos contingentes repartidos entre os países fornecedores, o Membro que aplique a restrição informará imediatamente todos os outros Membros interessados no fornecimento do produto em questão da parte do contingente, expressa em volume ou em valor, que tenha sido atribuída, para o período em curso, aos diversos países fornecedores e publicará essas informações nos prazos especificados no n.º 4 do artigo 1.º e de um modo que permita que os governos e os comerciantes dela tomem conhecimento.

d) Quando surjam situações em que seja necessário antecipar a data de abertura dos contingentes, as informações referidas no n.º 4 do artigo 1.º deverão ser publicadas nos prazos especificados no referido número e de modo que permita que os governos e os comerciantes delas tomem conhecimento.

e) Todas as pessoas, empresas ou instituições que reúnam as condições legais e administrativas impostas pelo Membro importador terão igual direito de solicitar licenças e de que os seus pedidos sejam tomados em consideração. Caso um pedido de licença não seja deferido, as razões do indeferimento serão, mediante pedido, comunicadas ao requerente, que terá direito a recurso ou a revisão, em conformidade com a legislação ou os procedimentos internos do Membro importador.

f) O prazo de exame dos pedidos não ultrapassará, salvo impossibilidade por razões independentes da vontade dos Membros, 30 dias se os pedidos forem examinados à medida que forem recebidos, ou seja por ordem cronológica da sua recepção, e 60 dias quando forem todos examinados simultaneamente. Neste último caso, considera-se que o prazo de exame dos pedidos se inicia no dia seguinte à data de encerramento do prazo anunciado para a apresentação dos pedidos.

g) O prazo de validade da licença será razoável e não tão curto que impeça a realização das importações. O prazo de validade das licenças não impedirá as importações de proveniência longínqua, excepto nos casos especiais em que as importações são necessárias para fazer face a necessidades a curto prazo de carácter imprevisto.

h) Ao administrarem os contingentes, os Membros não impedirão que as importações sejam efectuadas em conformidade com as licenças emitidas e não desincentivarão a utilização integral dos contingentes.

i) Ao emitirem as licenças, os Membros terão em conta a conveniência de que as mesmas sejam emitidas para quantidades de produtos que apresentem interesse económico.

j) Aquando da repartição das licenças, os Membros deverão ter em conta as importações anteriormente efectuadas pelo requerente. A este propósito, seria conveniente ter em conta se o requerente utilizou integralmente as licenças anteriormente obtidas, no decurso de um período representativo recente. Nos casos em que as licenças não tenham sido integralmente utilizadas, os Membros examinarão as razões desse facto e tê-las-ão em conta aquando da repartição de novas licenças. Procurar-se-á igualmente assegurar uma atribuição razoável de licenças aos novos importadores, tendo em conta a conveniência de as licenças serem emitidas para quantidades de produtos que apresentem interesse económico. A este propósito, deverá ser conferida especial atenção aos importadores que importam produtos originários de países em desenvolvimento Membros e, em especial, aos países menos desenvolvidos Membros.

k) No caso de contingentes administrados através de licenças que não sejam repartidos entre países fornecedores, os titulares de licenças (ver nota 6) poderão escolher livremente as fontes de importação. No caso de contingentes repartidos entre países fornecedores, a licença estipulará claramente o país ou os países.

i) Na aplicação do disposto no n.º 8 do artigo 1.º, poderão ser efectuados ajustamentos compensatórios com futuras repartições de licenças sempre que as importações tenham exercido o anterior nível de licenças.

(nota 6) Por vezes designados «titulares de contingentes».

Artigo 4.º

Instituições

É instituído um Comité das Licenças de Importação, composto por representantes de cada um dos Membros. O Comité elegerá o seu presidente e o seu vice-presidente e reunir-se-á conforme o necessário a fim de permitir aos Membros realizarem consultas sobre qualquer questão relativa ao funcionamento do Acordo ou à prossecução dos seus objectivos.

Artigo 5.º

Notificação

1 - Os Membros que estabeleçam procedimentos de licenças ou que alterem esses procedimentos notificarão esse facto do Comité, num prazo de 60 dias a contar da sua publicação.

2 - As notificações relativas ao estabelecimento de procedimentos de licenças de importação conterão as seguintes informações:

a) A lista dos produtos sujeitos aos procedimentos de licenças;

b) O serviço encarregado de informar sobre as condições requeridas para obtenção de licenças;

c) O(s) órgão(s) administrativo(s) ao qual(aos quais) devem ser apresentados os pedidos;

d) A data e o título da publicação em que são publicados os procedimentos em matéria de licenças;

e) A indicação de carácter automático ou não automático do procedimento de licenças, em conformidade com as definições que figuram nos artigos 2.º e 3.º;

f) No caso de procedimentos de licenças de importação automáticas, a indicação dos seus objectivos administrativos;

g) No caso dos procedimentos de licenças de importação não automáticas, a indicação da medida aplicada através do procedimento de licenças;

h) A duração prevista da aplicação do procedimento de licenças, caso possa ser estimada com certo grau de probabilidade e, se tal não for o caso, as razões pelas quais estas informações não podem ser fornecidas.

3 - As notificações relativas à modificação dos procedimentos de licença de importação indicarão os elementos acima mencionados, caso tenham sido alterados.

4 - Os Membros notificarão ao Comité a(s) publicação(publicações) em que serão publicadas as informações previstas no n.º 4 do artigo 1.º

5 - Qualquer Membro interessado que considere que um outro Membro não notificou o estabelecimento ou a alteração de um procedimento de licenças, em conformidade com o disposto nos n.os 1 a 3, poderá suscitar a questão perante esse outro Membro. Se a notificação não for efectuada imediatamente a seguir, esse Membro poderá ele próprio notificar o procedimento de licenças ou as alterações nele introduzidas, incluindo todas as informações pertinentes disponíveis.

Artigo 6.º

Consultas e resolução de litígios

As consultas e a resolução dos litígios no que respeita a qualquer questão que afecte o funcionamento do presente Acordo serão regidas pelas disposições dos artigos XXII e XXIII do GATT de 1994, tal como precisadas e aplicadas pelo Memorando de Entendimento sobre Resolução de Litígios.

Artigo 7.º

Exame

1 - O Comité examinará, consoante as necessidades, e pelo menos uma vez de dois em dois anos, a aplicação e o funcionamento do presente Acordo tendo em conta os seus objectivos e os direitos e obrigações nele estipulados.

2 - O Secretariado elaborará, com base para o exame do Comité, um relatório factual, a partir das informações fornecidas em conformidade com o disposto no artigo 5.º, das respostas ao questionário anual sobre os procedimentos em matéria de licenças de importação (ver nota 7) e de outras informações pertinentes e fiáveis de que disponha. Esse relatório conterá um resumo das referidas informações, indicando, em especial, qualquer alteração ou novo facto ocorrido durante o período objecto de exame, bem como qualquer outra informação que o Comité considere que nele deva figurar.

3 - Os Membros comprometem-se a preencher integral e prontamente o questionário anual sobre os procedimentos em matéria de licenças de importação.

4 - O Comité informará o Conselho do Comércio de Mercadorias dos factos ocorridos durante o período abrangido por tais exames.

(nota 7) Distribuído pela primeira vez, com datas de 23 de Março de 1971 como documento L/3515 do GATT de 1947.

Artigo 8.º

Disposições finais

Reservas

1 - Não poderão ser formuladas reservas relativamente a qualquer disposição do presente Acordo sem o consentimento dos outros Membros.

Legislação interna

2 - a) Cada Membro assegurará, o mais tardar na data em que entrar em vigor, no que lhe diz respeito, o Acordo OMC, a conformidade das suas disposições legislativas e regulamentares e dos seus procedimentos administrativos com as disposições do presente Acordo.

b) Cada Membro informará o Comité de quaisquer alterações das suas disposições legislativas e regulamentares pertinentes para o presente Acordo, bem como da administração de tais disposições.

ACORDO SOBRE AS SUBVENÇÕES E AS MEDIDAS DE COMPENSAÇÃO

Os Membros acordam no seguinte:

PARTE I

Disposições gerais

Artigo 1.º

Definição de subvenção

1.1 - Para efeitos do presente Acordo, considera-se que existe uma subvenção se:

a.1) Existir uma contribuição financeira do Estado ou de qualquer entidade pública no território de um Membro (designados por «Estado» no presente Acordo), ou seja, sempre que:

i) A prática do Estado inclua uma transferência directa de fundos (sob a forma de subsídios, empréstimos e injecções de capital, por exemplo), potenciais transferências directas de fundos ou responsabilidades (garantias de empréstimo, por exemplo);

ii) O Estado renuncie ou não proceda à cobrança de receitas públicas normalmente exigíveis (incentivos fiscais, tais como créditos fiscais por exemplo) (ver nota 1);

iii) O Estado forneça bens ou serviços que não infra-estruturas gerais, ou adquira bens;

iv) O Estado efectue pagamentos a um mecanismo de financiamento, ou encarregue um organismo privado de executar uma ou diversas funções dos tipos enumerados nas alíneas i) a iii), que normalmente incumbiriam ao Estado, ou determine que o faça, e a prática seguida não difira realmente da prática normal do Estado; ou

a.2) Se verificar qualquer forma de protecção dos rendimentos ou de manutenção dos preços na acepção do artigo XVI do GATT de 1994; e

b) Deste modo se conceder uma vantagem.

1.2 - Uma subvenção, tal como definida no n.º 1, só será sujeita às disposições da parte II ou das partes III ou V caso se trate de uma subvenção específica em conformidade com o artigo 2.º

(nota 1) Em conformidade com as disposições do artigo XVI do GATT de 1994 (nota relativa ao artigo XVI) e às disposições dos Anexos I a III do presente Acordo, não serão consideradas subvenções a isenção, a favor de um produto exportado, dos direitos ou encargos que incidam sobre o produto similar quando destinado ao consumo interno, ou a remissão destes direitos ou encargos até ao montante das quantias devidas a pagar.

Artigo 2.º

Especificidade

2.1 - A fim de determinar se uma subvenção, tal como definida no n.º 1 do artigo 1.º, é concedida especificamente a uma empresa ou a um ramo de produção ou a um grupo de empresas ou ramos de produção (a seguir designados por «certas empresas») sujeitos à jurisdição da entidade que concede a subvenção, serão aplicados os seguintes princípios:

a) No caso de a entidade que concede a subvenção, ou a legislação ao abrigo da qual actua a referida entidade, limitar expressamente a certas empresas o acesso à subvenção, considera-se que tal subvenção é específica;

b) No caso de a entidade que concede a subvenção, ou a legislação ao abrigo da qual actua a referida entidade, sujeitar a critérios ou a condições objectivos (ver nota 2) o direito de beneficiar da subvenção e o montante desta última, considera-se que não se trata de uma subvenção específica, desde que o direito de beneficiar da subvenção seja automático e que os referidos critérios ou condições sejam estritamente respeitados. Os critérios ou condições devem estar claramente enunciados nas disposições legislativas e regulamentares ou em quaisquer outros documentos oficiais, a fim de poderem ser verificados;

c) No caso de, não obstante se afigurar que não existe especificidade resultante da aplicação dos princípios enunciados nas alíneas a) e b), existirem motivos para considerar que a subvenção pode efectivamente ser específica, poderão ser tomados em consideração outros factores. Tais factores são os seguintes: utilização de um programa de subvenções por um número limitado de certas empresas, utilização dominante por certas empresas, concessão a certas empresas de montantes de subvenção desproporcionadamente elevados, e modo como a entidade que concede a subvenção exerceu um poder discricionário na decisão de conceder uma subvenção (ver nota 3). Para efeitos da aplicação da presente alínea, será tido em conta o grau de diversificação das actividades económicas na jurisdição da entidade que concede a subvenção, bem como o período durante o qual o programa de subvenções foi aplicado.

2.2 - Será considerada específica uma subvenção limitada a certas empresas situadas no interior de uma região geográfica determinada abrangida pela jurisdição da entidade que concede esta subvenção. Entende-se que a fixação ou a alteração dos níveis de tributação de aplicação geral por parte dos níveis da administração pública competentes para o fazer não será considerada uma subvenção específica para efeitos do presente Acordo.

2.3 - Qualquer subvenção abrangida pelas disposições do artigo 3.º será considerada específica.

2.4 - Qualquer determinação de especificidade nos termos do disposto no presente artigo deverá ser claramente demonstrada através de elementos de prova positivos.

(nota 2) Pela expressão «critérios ou condições objectivas» tal como utilizada no presente artigo, entende-se os critérios ou condições neutros, que não favorecem certas empresas em relação a outras, de carácter económico e de aplicação horizontal, tais como o número de assalariados ou a dimensão da empresa.

(nota 3) Neste contexto, serão especialmente tidas em conta as informações relativas à frequência com que os pedidos de subvenção foram recusados ou aprovados, bem como os motivos destas decisões.

PARTE II

Subvenções proibidas

Artigo 3.º

Proibição

3.1 - Sob reserva do disposto no Acordo sobre a Agricultura, serão proibidas as seguintes subvenções na acepção do artigo 1.º:

a) Subvenções subordinadas, de direito ou de facto (ver nota 4), quer exclusivamente, quer entre diversas outras condições, aos resultados das exportações, incluindo os enumerados no Anexo I (ver nota 5);

b) Subvenções subordinadas, quer exclusivamente, quer entre diversas outras condições, à utilização de produtos nacionais em detrimento de produtos importados.

3.2 - Os Membros não concederão nem manterão as subvenções referidas no n.º 1.

(nota 4) Considera-se que esta condição está preenchida sempre que os factos demonstrem que a concessão de uma subvenção, apesar de não estar juridicamente subordinada aos resultados das exportações, está de facto ligada às exportações ou receitas de exportação efectivas ou previstas. O simples facto de uma subvenção ser concedida a empresas exportadoras não será por este único motivo considerado como uma subvenção às exportações na acepção da presente disposição.

(nota 5) As medidas referidas no Anexo I como não constituindo subvenções às exportações não serão proibidas por força da presente disposição nem de qualquer outra disposição do presente Acordo.

Artigo 4.º

Recursos

4.1 - Sempre que um Membro tenha motivos para considerar que um outro Membro concede ou mantém uma subvenção proibida poderá solicitar a realização de consultas com este outro Membro.

4.2 - Um pedido de consultas nos termos do n.º 1 incluirá uma exposição dos elementos de prova disponíveis relativos à existência e à natureza da subvenção em questão.

4.3 - Sempre que seja apresentado um pedido de consultadas nos termos do n.º 1, o Membro que alegadamente concede ou mantém a subvenção em questão deverá iniciar tais consultas o mais rapidamente possível. As consultas terão por objectivo precisar os factos e chegar a uma solução mutuamente acordada.

4.4 - Caso não tenha sido encontrada uma solução mutuamente acordada no prazo de 30 dias (ver nota 6) a contar da data do pedido de consultas, qualquer Membro que seja parte nestas consultas poderá submeter a questão ao Órgão de Resolução de Litígios (ver nota 7) («ORL») tendo em vista a criação imediata de um painel, a menos que o ORL decida por consenso não criar este painel.

4.5 - Após a sua criação, o painel poderá solicitar a assistência do Grupo Permanente de Peritos (ver nota 7) (no presente Acordo denominado «GPP») para determinar se a medida em questão é uma subvenção proibida. Se tal lhe for solicitado, o GPP analisará imediatamente os elementos de prova relativos à existência e à natureza da medida em questão, proporcionando ao Membro que aplica ou mantém a medida a possibilidade de demonstrar que tal medida não é uma subvenção proibida. O GPP comunicará as suas conclusões ao painel no prazo por este fixado. As conclusões do GPP no que se refere a determinar se a medida em questão é ou não uma subvenção proibida serão aceites pelo painel sem alterações.

4.6 - O painel apresentará o seu relatório final às partes em litígio. O relatório será enviado a todos os Membros no prazo de 90 dias a contar da data de aprovação da composição e do mandato do painel.

4.7 - Caso se verifique que a medida em questão constitui efectivamente uma subvenção proibida, o painel recomendará que o Membro que concede a subvenção a elimine imediatamente, especificando na sua recomendação o prazo para a eliminação da medida.

4.8 - O relatório do painel será adoptado pelo ORL no prazo de 30 dias a contar da data da sua comunicação a todos os Membros, a menos que uma das partes em litígio notifique formalmente ao ORL a sua decisão de interpor recurso ou que o ORL decida, por consenso, não adoptar o relatório.

4.9 - No caso de o relatório do painel ser objecto de um recurso, o Órgão do Recurso tomará a sua decisão no prazo de 30 dias a contar da data em que a parte em litígio notificou formalmente a sua intenção de interpor recurso. Se o Órgão de Recurso considerar que não pode apresentar o seu relatório no prazo de 30 dias, informará o ORL por escrito dos motivos deste atraso, indicando o prazo em que considera poder apresentar o seu relatório. De qualquer modo, o processo não poderá ultrapassar 60 dias. O relatório do Órgão de Recurso será adoptado pelo ORL e aceite incondicionalmente pelas partes em litígio, a menos que a ORL decida por consenso não adoptar o relatório do Órgão de Recurso, no prazo de 20 dias após a sua comunicação aos Membros (ver nota 8).

4.10 - Caso não seja dado seguimento à recomendação do ORL no prazo decidido pelo painel, que começará na data de adopção do relatório do painel ou do relatório do Órgão de Recurso, o ORL autorizará o Membro queixoso a tomar as contramedidas apropriadas (ver nota 9), a menos que o ORL decida por consenso rejeitar o pedido.

4.11 - No caso de uma parte em litígio solicitar uma arbitragem, em conformidade com o n.º 6 do artigo 22.º do Memorando de Entendimento sobre Resolução de Litígios («MERL»), o árbitro determinará se as contramedidas são apropriadas (ver nota 10).

4 - Para efeitos dos litígios examinados nos termos do dispostos no presente artigo, os prazos aplicáveis em conformidade com o MERL serão reduzidos para metade, com excepção dos prazos especificamente referidos no presente artigo.

(nota 6) Os prazos mencionados no presente artigo poderão ser prorrogados de comum acordo.

(nota 7) Tal como instituído pelo artigo 24.º

(nota 8) Caso não se encontre prevista uma reunião do ORL durante este período, será convocada uma reunião para este efeito.

(nota 9) Esta expressão não deve ser interpretada como autorizando contramedidas desproporcionadas pelo facto de as subvenções abrangidas pelas presentes disposições serem proibidas.

(nota 10) Esta expressão não deve ser interpretada como autorizando contramedidas desproporcionadas pelo facto de as subvenções abrangidas pelas presentes disposições serem proibidas.

PARTE III

Subvenções passíveis de recurso

Artigo 5.º

Efeitos desfavoráveis

Nenhum Membro deverá causar, recorrendo a qualquer uma das subvenções nos n.os 1 e 2 do artigo 1.º, efeitos desfavoráveis aos interesses dos restantes Membros, designadamente:

a) Causar um prejuízo a um ramo de produção nacional de um outro Membro (ver nota 11);

b) Anular ou comprometer vantagens que resultem directa ou indirectamente do GATT de 1994 para outros Membros, especialmente as vantagens resultantes de concessões consolidadas por força do artigo 2.º do referido Acordo (ver nota 12);

c) Causar um prejuízo grave aos interesses de um outro Membro (ver nota 13).

O presente artigo não se aplica às subvenções mantidas no que respeita aos produtos agrícolas, tal como previsto no artigo 13.º do Acordo sobre a Agricultura.

(nota 11) A expressão «prejuízo causado a um ramo de produção nacional» é utilizada no presente Acordo na mesma acepção da parte V.

(nota 12) A expressão «anular ou comprometer vantagens» é utilizada no presente Acordo na acepção das disposições pertinentes do GATT de 1994, e o facto de as vantagens serem anuladas ou comprometidas será determinado em conformidade com a prática de aplicação das referidas disposições.

(nota 13) A expressão «prejuízo grave aos interesses de um outro Membro» é utilizada no presente Acordo na mesma acepção do n.º 1 do artigo XVI do GATT de 1994 e compreende igualmente a ameaça de um prejuízo grave.

Artigo 6.º

Prejuízo grave

6.1 - Considera-se que existe um prejuízo grave na acepção da alínea c) do artigo 5.º no caso de:

a) O total das subvenções ad valorem (ver nota 14) concedidas a um produto ser superior a 5% (ver nota 15);

b) Subvenções destinadas a compensar os prejuízos de exploração sofridos por um ramo de produção;

c) Subvenções destinadas a cobrir os prejuízos de exploração de uma empresa, excepto no caso de medidas pontuais de carácter excepcional, que não poderão repetir-se a favor dessa empresa e que visam simplesmente dar tempo a que sejam encontradas soluções de longo prazo e evitar problemas sociais dramáticos;

d) Uma remissão directa de uma dívida, ou seja, a remissão de uma dívida para com o Estado, e subsídios destinados a cobrir o reembolso da dívida (ver nota 16).

(nota 14) A subvenção ad valorem será calculada em conformidade com as disposições do Anexo IV.

(nota 15) Uma vez que se prevê que as aeronaves civis sejam sujeitas a regras multilaterais específicas, o limite indicado na presente alínea não se aplica às aeronaves civis.

(nota 16) Os Membros reconhecem que o facto de um financiamento baseado em royalties, de que beneficie um programa de construção de aeronaves civis, não ser inteiramente reembolsado, dado que o nível de vendas efectivas é inferior ao nível das vendas previstas, não constitui em si um prejuízo grave para efeitos da presente alínea.

6.2 - Não obstante o disposto no n.º 1, não se considera existir um prejuízo grave se o Membro que concede a subvenção demonstrar que esta última não teve qualquer dos efeitos enumerados no n.º 3.

6.3 - Poderá ser causado um prejuízo grave, na acepção da alínea c) do artigo 5.º, sempre que se verifiquem uma ou diversas das situações a seguir descritas:

a) A subvenção tem por efeitos desviar ou dificultar as importações de um produto similar de um outro Membro no mercado do Membro que concede a subvenção;

b) A subvenção tem por efeitos desviar ou dificultar as exportações de um produto similar de um outro Membro do mercado de um país terceiro;

c) A subvenção traduz-se numa subcotação significativa do preço do produto subvencionado relativamente ao preço de um produto similar de um outro Membro do mesmo mercado, ou tem efeitos significativos em matéria de contenção ou depreciação dos preços ou ainda de perda de vendas no mesmo mercado;

d) A subvenção traduz-se num aumento da parte do mercado mundial de um determinado produto subvencionado, primário ou de base (ver nota 17), detida pelo Membro que concede a subvenção em relação à média das partes de mercado detidas por este Membro durante o período de três anos precedente, obedecendo tal aumento a uma tendência constante durante o período em que foram concedidas subvenções.

(nota 17) Excepto no caso de serem aplicáveis outras regras específicas multilateralmente acordadas ao comércio do produto ou do produto de base em questão.

6.4 - Para efeitos da aplicação do disposto na alínea b) do n.º 3, considera-se que existe um desvio de exportações ou um entrave às exportações sempre que, sem prejuízo do disposto no n.º 7, tenha sido demonstrada uma alteração das partes relativas de mercado em detrimento do produto similar não subvencionado (ao longo de um período devidamente representativo, suficiente para que se possa observar uma clara tendência na evolução do mercado do produto em causa que, em circunstâncias normais, deverá ser de pelo menos um ano). A expressão «alteração das partes relativas de mercado» incluirá qualquer uma das situações seguintes: a) aumento da parte de mercado do produto subvencionado; b) a parte de mercado do produto subvencionado permanece constante em circunstâncias em que, na ausência de subvenção, teria diminuído; c) a parte de mercado do produto subvencionado diminui, mas a um ritmo mais lento do que teria acontecido na ausência de subvenção.

6.5 - Para efeitos do disposto na alínea c) do n.º 3, considera-se que existe subcotação de preços sempre que tal subcotação tenha sido demonstrada através da comparação dos preços do produto subvencionado com os preços de um produto similar não subvencionado vendido no mesmo mercado. A comparação será efectuada no mesmo estádio comercial e durante períodos comparáveis, tomando devidamente em consideração qualquer outro factor que afecte a comparabilidade dos preços. No entanto, caso tal comparação directa não seja possível, a existência de uma subcotação de preços poderá ser demonstrada com base nos valores unitários de exportação.

6.6 - Sem prejuízo do disposto no n.º 3 do Anexo V, cada Membro em cujo mercado se alegue ter sido causado um prejuízo grave, colocará à disposição das partes em litígio, tal como previsto no artigo 7.º, bem como do painel instituído em conformidade com o n.º 4 do artigo 7.º, todas as informações pertinentes que possam ser obtidas no que se refere às alterações das partes de mercado detidas pelas partes em litígio, bem como aos preços dos produtos em causa.

6.7 - Não existirá desvio ou entrave que dê origem a um prejuízo grave na acepção do n.º 3, sempre que durante o período considerado se verifique uma das situações seguintes (ver nota 18):

a) Proibição ou restrição aplicável às exportações do produto similar do Membro queixoso, ou às importações provenientes desse Membro no mercado do país terceiro em causa;

b) Decisão, por parte de um Estado importador, que possui o monopólio do comércio ou pratica o comércio de Estado relativamente ao produto em causa, de desviar, por motivos não comerciais, as importações provenientes do Membro queixoso para outro país ou outros países;

c) Catástrofes naturais, greves, perturbações dos transportes ou outros casos de força maior que afectem de um modo significativo a produção, a qualidade ou o preço do produto de que o Membro queixoso dispõe para exportação;

d) Existência de acordos que limitem as exportações do Membro queixoso;

e) Diminuição voluntária das quantidades do produto em causa de que o Membro queixoso dispõe para exportação (incluindo, designadamente, uma situação em que as empresas desse Membro decidiram autonomamente reorientar as exportações deste produto para novos mercados);

f) Desrespeito das normas e de outras disposições regulamentares do país importador.

(nota 18) O facto de certas situações serem referidas neste número não lhes concede por si só qualquer estatuto jurídico no âmbito do GATT de 1994 ou do presente Acordo. Tais situações não devem ter um carácter isolado, esporádico ou pouco significativo.

6.8 - Caso não se verifiquem as situações referidas no n.º 7, a existência de um prejuízo grave deverá ser determinada com base nas informações apresentadas ao painel ou por este obtidas, incluindo as informações comunicadas em conformidade com as disposições do Anexo V.

6.9 - O presente artigo não se aplica às subvenções mantidas no que respeita aos produtos agrícolas, tal como previsto no artigo 13.º do Acordo sobre a Agricultura.

Artigo 7.º

Recursos

7.1 - Sob reserva do disposto no artigo 13.º do Acordo sobre a Agricultura, sempre que um Membro tenha motivos para considerar que uma subvenção, referida no artigo 1.º, concedida ou mantida por um outro Membro prejudica um ramo da sua produção nacional, anula ou compromete algumas das suas vantagens ou causa um prejuízo grave, o referido Membro poderá solicitar a realização de consultas com esse outro Membro.

7.2 - Um pedido de consultas nos termos do n.º 1 incluirá uma exposição dos elementos de prova disponíveis relativos: a) à existência e natureza da subvenção em questão e b) ao prejuízo causado ao ramo de produção nacional, à anulação ou à redução das vantagens ou ao prejuízo grave (ver nota 19) causado aos interesses do Membro que solicita a realização de consultas.

7.3 - Sempre que seja apresentado um pedido de consultas nos termos do n.º 1, o Membro que alegadamente concede ou mantém a subvenção em questão deverá iniciar tais consultas o mais rapidamente possível. As consultas terão por objectivo precisar os factos e chegar a uma solução mutuamente acordada.

7.4 - No caso de as consultas não permitirem chegar a uma solução mutuamente acordada no prazo de 60 dias (ver nota 20), qualquer Membro que seja parte nestas consultas poderá submeter a questão ao ORL, tendo em vista a criação de um painel, a menos que o ORL decida por consenso não criar um painel. A composição e o mandato do painel serão aprovados no prazo de 15 dias a contar da data da sua criação.

7.5 - O painel examinará a questão e apresentará o seu relatório final às partes em litígio. O relatório será comunicado a todos os Membros no prazo de 120 dias a contar da data da aprovação da composição e do mandato do painel.

7.6 - O relatório do painel será adoptado pelo ORL no prazo de 30 dias a contar da data da sua comunicação a todos os Membros (ver nota 21), a menos que uma das partes em litígio notifique formalmente ao ORL a sua decisão de interpor recurso ou que o ORL decida por consenso não adoptar o relatório.

7.7 - Caso seja interposto recurso relativamente ao relatório de um painel, o Órgão de Recurso comunicará a sua decisão no prazo de 60 dias a contar da data em que a parte em litígio notificou formalmente a sua intenção de interpor recurso. Sempre que o Órgão de Recurso considere que não pode apresentar o seu relatório no prazo de 60 dias, informará o ORL por escrito dos motivos deste atraso, indicando o prazo em que considera poder apresentar o seu relatório. De qualquer modo, o processo não poderá ultrapassar 90 dias. O relatório do Órgão de recurso será adoptado pelo ORL e aceite incondicionalmente pelas partes em litígio, a menos que o ORL decida por consenso não adoptar este relatório nos 20 dias seguintes à sua comunicação aos Membros (ver nota 22).

7.8 - Sempre que seja adoptado um relatório de um painel ou do Órgão de Recurso, no qual tenha sido determinado que uma subvenção causou efeitos desfavoráveis aos interesses de um outro Membro, na acepção do artigo 5.º, o Membro que concede ou mantém esta subvenção tomará as medidas apropriadas para eliminar os efeitos desfavoráveis ou suprirá a subvenção.

7.9 - No caso de o Membro em questão não ter tomado as medidas apropriadas para eliminar os efeitos desfavoráveis da subvenção ou suprimir a subvenção no prazo de seis meses a contar da data em que o ORL adoptou o relatório do painel ou do Órgão de Recurso, e na ausência de um acordo sobre medidas de compensação, o ORL autorizará o Membro queixoso a tomar contramedidas, proporcionais ao grau e à natureza dos efeitos desfavoráveis cuja existência tenha sido determinada, a menos que o ORL decida por consenso rejeitar o pedido.

7.10 - Caso uma parte em litígio solicite uma arbitragem ao abrigo do n.º 6 do artigo 22.º do MERL, caberá ao árbitro determinar se as contramedidas são proporcionais ao grau e à natureza dos efeitos desfavoráveis cuja existência tenha sido determinada.

(nota 19) Caso o pedido se refira a uma subvenção que se considera causar um prejuízo grave na acepção do n.º 1 do artigo 6.º, os elementos de prova disponíveis relativos ao prejuízo grave poderão limitar-se aos elementos de prova de que se disponha para saber se as condições enunciadas no referido artigo foram ou não preenchidas.

(nota 20) Os prazos mencionados no presente artigo poderão ser prorrogados de comum acordo.

(nota 21) Caso não esteja prevista uma reunião do ORL durante este período, será convocado uma reunião para este efeito.

(nota 22) Caso não esteja prevista uma reunião do ORL durante este período, será realizada uma reunião para este efeito.

PARTE IV

Subvenções não passíveis de recurso

Artigo 8.º

Identificação das subvenções não passíveis de recurso

8.1 - As seguintes subvenções serão consideradas não passíveis de recurso (ver nota 23):

a) Subvenções que não são específicas na acepção do artigo 2.º;

b) Subvenções que são específicas na acepção do artigo 2.º, mas que satisfazem todas as condições previstas nas alíneas a, b) ou c) do n.º 2.

8.2 - Não obstante o disposto nas partes III e V, as seguintes subvenções não serão passíveis de recurso:

a) Assistência a actividades de investigação realizadas por empresas ou por estabelecimentos de ensino superior ou de investigação que tenham celebrado contratos com empresas, se (ver nota 24) (ver nota 25) (ver nota 26) a assistência cobrir (ver nota 27), no máximo, 75% dos custos da investigação industrial (ver nota 28) ou 50% dos custos da actividade de desenvolvimento pré-concorrencial (ver nota 29) (ver nota 30), e desde que esta assistência se limite exclusivamente aos seguintes elementos:

i) Despesas de pessoal (investigadores, técnicos e outro pessoal de apoio recrutados exclusivamente para a actividade de investigação);

ii) Custo dos instrumentos, do equipamento e dos terrenos e instalações utilizados exclusiva e permanentemente (excepto no caso de colocação à disposição numa base comercial) para a actividade de investigação;

iii) Custo de consultoria e serviços equivalentes utilizados exclusivamente para a actividade de investigação, incluindo, entre outros, a investigação, os conhecimentos técnicos e as patentes adquiridos a fontes externas;

iv) Encargos gerais adicionais incorridos directamente em virtude da actividade de investigação;

v) Outros encargos de exploração (tais como custo dos materiais, fornecimentos e afins) incorridos directamente em virtude da actividade de investigação;

b) Assistência a regiões desfavorecidas do território de um Membro, concedida ao abrigo de um quadro geral de desenvolvimento regional (ver nota 31), com um carácter não específico (na acepção do artigo 2.º) em regiões elegíveis, sob reserva das seguintes condições:

i) Cada região desfavorecida deve ser uma zona geográfica contínua claramente demarcada, com uma identidade económica e administrativa definível;

ii) A região é considerada desfavorecida com base em critérios neutros e objectivos (ver nota 32), indicando que as dificuldades enfrentadas por essa região não são apenas imputáveis a circunstâncias temporárias; tais critérios devem estar claramente enunciados nas disposições legislativas, regulamentares ou em quaisquer outros documentos oficiais, de modo a poderem ser verificados;

iii) Os critérios incluirão uma medida de avaliação do desenvolvimento económico que se baseará em pelo menos um dos seguintes factores:

- O rendimento per capita, ou o rendimento do agregado familiar per capita, ou o PIB per capita, que não deverá ultrapassar 85% da média do território considerado;

- A taxa de desemprego, que deverá ser de pelo menos 110% da média do território considerado;

avaliados ao longo de um período de três anos; todavia, esta medida poderá ser composta e incluir outros factores;

c) Assistência tendo em vista a adaptação de instalações existentes (ver nota 33) às novas exigências em matéria ambiental impostas por disposições legislativas e/ou regulamentares, que se traduzam em maiores dificuldades e numa carga financeira mais pesada para as empresas, desde que tal assistência:

i) Constitua uma medida pontual de carácter excepcional; e

ii) Se limite a 20% do custo de adaptação; e

iii) Não cubra o custo da substituição e da exploração do investimento que beneficiou da assistência, o qual deve estar totalmente a cargo das empresas; e

iv) Esteja directamente ligada e seja proporcional ao plano de redução das perturbações e da poluição da empresa e não cubra economias que poderiam ser realizadas nos custos de fabrico; e

v) Seja acessível a todas as empresas que possam adoptar o novo equipamento e/ou os novos processos de produção.

8.3 - Um programa de subvenções relativamente ao qual sejam invocadas as disposições do n.º 2 deverá ser notificado ao Comité antes da sua execução, em conformidade com as disposições da parte VII. A notificação deve ser suficientemente precisa para permitir aos outros Membros avaliar a compatibilidade do programa com as condições e critérios previstos nas disposições pertinentes do n.º 2. Os Membros deverão igualmente fornecer ao Comité uma actualização anual destas notificações, em especial comunicando informações relativas às despesas globais efectuadas ao abrigo de cada programa e a quaisquer alterações do programa. Os restantes Membros terão o direito de solicitar informações a propósito de casos específicos de subvenções no âmbito de um programa notificado (ver nota 34).

8.4 - A pedido de um Membro, o Secretariado examinará uma notificação efectuada em conformidade com o n.º 3, podendo, se for caso disso, solicitar ao Membro que concede a subvenção informações complementares relativas ao programa notificado em apreço. O Secretariado apresentará as suas conclusões ao Comité. Caso lhe seja apresentado um pedido neste sentido, o Comité examinará sem demora as conclusões do Secretariado (ou, caso não tenha sido solicitado ao Secretariado que proceda a um exame, a própria notificação), a fim de determinar se foram respeitados as condições e critérios enunciados no n.º 2. O processo previsto no presente número deverá estar concluído o mais tardar aquando da primeira reunião ordinária do Comité seguinte à notificação de um programa de subvenções, desde que tenha decorrido um período de pelo menos dois meses entre a notificação e a reunião ordinária do Comité. O processo de exame descrito no presente número será igualmente aplicável, a pedido, a alterações significativas de um programa notificadas nas actualizações anuais referidas n.º 3.

8.5 - A pedido de um Membro, a determinação do Comité referida no n.º 4, ou o facto de o Comité não ter procedido a tal determinação, bem como a violação, em casos individuais, das condições enunciadas num programa notificado, será submetida a uma arbitragem vinculativa. O órgão de arbitragem apresentará as suas conclusões aos Membros no prazo de 120 dias a contar da data em que lhe foi submetido o processo. Salvo disposição em contrário do presente número, o MERL será aplicável às arbitragens realizadas em conformidade com o presente número.

(nota 23) Reconhece-se que os Membros proporcionam uma assistência significativa com diversos objectivos e que o simples facto de tal assistência poder não satisfazer as condições necessárias para ser considerada não passível de recurso, nos termos do presente artigo, não constitui em si um motivo para restringir a faculdade dos Membros de concederem tal assistência.

(nota 24) Uma vez que se prevê que as aeronaves civis estejam sujeitas a regras multilaterais específicas, as disposições desta alínea não se aplicam a este produto.

(nota 25) O mais tardar 18 meses após a data de entrada em vigor do Acordo OMC, o Comité das Subvenções e Medidas de Compensação previsto no artigo 24.º (designado por «Comité» no presente Acordo) examinará a aplicação das disposições da alínea a) do n.º 2, tendo em vista introduzir todas as alterações necessárias para melhorar a aplicação de tais disposições. Ao considerar eventuais alterações, o Comité examinará cuidadosamente as definições das categorias indicadas na presente alínea, à luz da experiência adquirida pelos Membros no âmbito de programas de investigação e do trabalho de outras instituições internacionais competentes.

(nota 26) As disposições do presente Acordo não se aplicam às actividades de investigação fundamental empreendidas de forma independente por estabelecimentos de ensino superior ou de investigação. Entende-se por «investigação fundamental» um alargamento dos conhecimentos científicos e técnicos gerais não relacionado com objectivos industriais ou comerciais.

(nota 27) Os níveis autorizados de assistência não passível de recurso referidos na presente alínea serão estabelecidos em relação aos custos totais pertinentes incorridos durante a execução de um determinado projecto.

(nota 28) Entende-se por «investigação industrial» a pesquisa planeada ou a investigação crítica tendo em vista adquirir novos conhecimentos, considerando-se que tais conhecimentos poderão ser úteis para desenvolver novos produtos, processos ou serviços ou conduzir a uma melhoria nítida dos produtos, processos ou serviços existentes.

(nota 29) Entende-se por «actividade de desenvolvimento pré-concorrencial» a concretização dos resultados da investigação industrial num plano, num esquema ou num projecto para produtos, processos ou serviços novos, alterados ou aperfeiçoados, destinados a serem vendidos ou utilizados, incluindo a criação de um primeiro protótipo que não poderá ser utilizado comercialmente. Esta expressão poderá igualmente incluir a formulação e concepção de produtos, processos ou serviços alternativos, bem como projectos de demonstração inicial ou projectos piloto, desde que tais projectos não possam ser convertidos ou utilizados para aplicações industriais ou uma exploração comercial. Esta expressão não inclui as alterações de rotina ou alterações periódicas introduzidas em produtos, linhas de produção, processos de fabrico, serviços existentes e outras operações em curso, mesmo que tais alterações se possam traduzir em melhoramentos.

(nota 30) No caso de programas que englobem trabalhos de «investigação industrial» e uma «actividade de desenvolvimento pré-concorrencial», o nível autorizado de assistência não passível de recurso não poderá exceder a média simples dos níveis autorizados de assistência não passível de recurso aplicáveis às duas categorias acima referidas, calculada com base em todos os cursos pertinentes indicados nos pontos i) a v) desta alínea.

(nota 31) A expressão «quadro geral de desenvolvimento regional» significa que os programas regionais de subvenções se integram numa política de desenvolvimento regional coerente a nível interno e de aplicação geral, e que as subvenções para o desenvolvimento regional não são concedidas em pontos geográficos isolados, sem nenhuma ou praticamente nenhuma influência sobre o desenvolvimento de uma região.

(nota 32) Por «critérios neutros e objectivos» entende-se critérios que não favoreçam certas regiões para além do necessário para eliminar ou reduzir as disparidades regionais no âmbito da política de desenvolvimento regional. Neste contexto, os programas regionais de subvenções fixarão limites máximos para o montante da assistência que poderá ser concedida a cada projecto subvencionado. Tais limites máximos deverão ser diferenciados segundo os diferentes níveis de desenvolvimento das regiões beneficiárias e expressos em termos de custo dos investimentos ou do custo da criação de postos de trabalho. A repartição da assistência no âmbito desses limites máximos, deverá ser suficientemente ampla e equitativa de modo a evitar a utilização dominante de uma subvenção por parte de certas empresas, ou a concessão a certas empresas de montantes de subvenção desproporcionados, tal como previsto no artigo 2.º

(nota 33) Por «instalações existentes» entende-se instalações que já tenham funcionado durante pelo menos dois anos no momento em que são impostas novas exigências em matéria ambiental.

(nota 34) Reconhece-se que não existe qualquer elemento nesta disposição em matéria de notificação que exija a comunicação de informações confidenciais, incluindo informações comerciais confidenciais.

Artigo 9.º

Consultas e recurso autorizados

9.1 - Se, no decurso da execução de um programa referido no n.º 2 do artigo 8.º, e não obstante tal programa ser compatível com os critérios enunciados nesse número, um Membro tiver motivos para considerar que tal programa teve efeitos desfavoráveis significativos sobre o seu ramo de produção nacional, a ponto de causar prejuízos dificilmente reparáveis, o referido Membro poderá solicitar a realização de consultas com o Membro que concede ou mantém a subvenção.

9.2 - Sempre que seja apresentado um pedido de consultas nos termos do n.º 1, o Membro que concede ou mantém o programa de subvenções em questão deverá iniciar tais consultas o mais rapidamente possível. As consultas terão por objectivo precisar os factores e chegar a uma solução mutuamente aceitável.

9.3 - No caso de as consultas realizadas em conformidade com o disposto no n.º 2 não terem permitido chegar a uma solução mutuamente aceitável, no prazo de 60 dias a contar da data em que foram solicitadas, o Membro que solicitou as consultas poderá submeter a questão ao Comité.

9.4 - Sempre que uma questão lhe seja submetida, o Comité examinará imediatamente os factos em causa e os elementos de prova relativos aos efeitos referidos no n.º 1. Se determinar a existência de tais efeitos, o Comité poderá recomendar ao Membro que concede a subvenção que altere esse programa de modo a suprimir tais efeitos. O Comité apresentará as suas conclusões no prazo de 120 dias a contar da data em que lhe foi submetida a questão, em conformidade com o disposto no n.º 3. Caso não seja dado seguimento à recomendação no prazo de 6 meses, o Comité autorizará o Membro requerente a tomar contramedidas apropriadas, proporcionais à natureza e o grau dos efeitos cuja existência tenha sido determinada.

PARTE V

Medidas de compensação

Artigo 10.º

Aplicação do artigo VI do GATT de 1994 (ver nota 35)

Os Membros tomarão todas as medidas necessárias para que a instituição de um direito de compensação (ver nota 36) relativamente a qualquer produto do território de um Membro, importado no território de um outro Membro, seja conforme às disposições do artigo VI do GATT de 1994 e aos termos do presente Acordo. Só podem ser instituídos direitos de compensação na sequência de inquéritos iniciados (ver nota 37) e conduzidos em conformidade com as disposições do presente Acordo e do Acordo sobre a Agricultura.

(nota 35) As disposições das partes II ou III podem ser invocadas paralelamente às da parte V; no entanto, no que diz respeito aos efeitos de uma determinada subvenção no mercado interno do Membro importador, poderá apenas recorrer-se a uma forma de reparação (a um direito de compensação, no caso de as condições referidas na parte V estarem preenchidas, ou a uma contramedida em conformidade com os artigos 4.º e 7.º). As disposições das partes III e V não poderão ser invocadas a propósito de medidas consideradas como não passíveis de recursos em conformidade com as disposições da parte IV. Todavia, as medidas referidas no n.º 1, alínea a), do artigo 8.º poderão ser objecto de um inquérito destinado a determinar se são ou não específicas na acepção do artigo 2.º. Além disso, no caso de uma subvenção mencionada no n.º 2 do artigo 8.º, concedida no âmbito de um programa que não tenha sido notificado em conformidade com o n.º 3 do artigo 8.º, poderão ser invocadas as disposições das partes III ou V, sendo, no entanto, tal subvenção tratada como uma subvenção não passível de recurso, caso se verifique que preenche os critérios enunciados no n.º 2 do artigo 8.º

(nota 36) Por «direito de compensação» entende-se um direito especial cobrado para neutralizar qualquer subvenção concedida, directa ou indirectamente, ao fabrico, à produção ou à exportação de um produto, tal como previsto no n.º 3 do artigo VI do GATT de 1994.

(nota 37) Pelo termo «iniciado», tal como é utilizado a seguir, entende-se o trâmite processual pelo qual um Membro inicia formalmente um inquérito, em conformidade com o disposto no artigo 11.º

Artigo 11.º

Início do processo e inquérito subsequente

11.1 - Sob reserva do disposto no n.º 6, um inquérito que tenha por objectivo determinar a existência, o grau e o efeito de qualquer alegada subvenção será iniciado na sequência de um pedido escrito apresentado pelo ramo de produção ou em seu nome.

11.2 - Um pedido apresentado nos termos do n.º 1 deve incluir elementos de prova suficientes da existência: a) de uma subvenção e, se possível, do respectivo montante; b) de um prejuízo na acepção do artigo VI do GATT de 1994, com a interpretação que lhe é dada pelo presente Acordo; e c) de um nexo de causalidade entre as importações subvencionadas e o alegado prejuízo. Uma simples afirmação, não apoiada por elementos de prova pertinentes, não poderá ser considerada suficiente para satisfazer os requisitos do presente número. O pedido deverá incluir informações que possam razoavelmente ser do conhecimento do requerente, relativas aos seguintes aspectos:

i) Identidade do requerente e uma descrição do volume e do valor da produção nacional do produto similar por parte do requerente. Sempre que seja apresentado um pedido por escrito em nome do ramo de produção nacional, o referido pedido deverá identificar o ramo de produção em nome do qual é apresentado, través de uma lista de todos os produtores nacionais conhecidos do produto similar (ou de associações de produtores nacionais do produto similar) e, na medida do possível, uma descrição do volume e do valor da produção nacional do produto similar representada por estes produtores;

ii) Uma descrição completa do produto alegadamente objecto de uma subvenção, os nomes do ou dos países de origem ou de exportação em questão, a identidade de cada exportador ou produtor estrangeiro conhecido e uma lista das pessoas conhecidas como importando o produto em questão;

iii) Os elementos de prova relativos à existência, ao montante e à natureza da subvenção em questão;

iv) Os elementos de prova que estabeleçam que o prejuízo alegadamente infligido a um ramo de produção nacional é causado pelas importações subvencionadas, em virtude dos feitos das subvenções; estes elementos de prova devem incluir informações relativas à evolução do volume das importações alegadamente objecto de uma subvenção, ao efeito destas importações sobre os preços do produto similar no mercado interno e à incidência destas importações sobre o ramo de produção nacional, demonstrado através de elementos e índices pertinentes que influenciam a situação deste sector, tais como os enumerados nos n.os 2 e 4 do artigo 15.º

11.3 - As autoridades analisarão a exactidão e a pertinência dos elementos de prova que acompanham o pedido, a fim de determinar se tais elementos de prova são suficientes para justificar o início de um inquérito.

11.4 - Só será iniciado um inquérito em conformidade com o n.º 1 no caso de as autoridades terem determinado, com base num exame do grau de apoio ou de oposição ao pedido expresso (ver nota 38) pelos produtores nacionais do produto similar (ver nota 39). Considera-se que o pedido foi apresentado «pelo ramo de produção nacional ou em seu nome» se for apoiado pelos produtores nacionais cuja produção conjunta represente mais de 50% da produção total do produto similar produzido pela parte do ramo de produção nacional que manifestou o seu apoio ou a sua oposição ao pedido. No entanto, não se iniciará um inquérito quando os produtores nacionais que apoiem expressamente o pedido representem menos de 25% da produção total do produto similar produzido pelo ramo de produção nacional.

(nota 38) No caso de ramos de produção fragmentados que incluam um número excepcionalmente elevado de produtores, as autoridades poderão determinar em que medida existe apoio ou oposição, utilizando técnicas de amostragem válidas de um ponto de vista estatístico.

(nota 39) Os Membros estão cientes de que no território de certos Membros os assalariados dos produtores nacionais do produto similar ou os representantes destes assalariados podem apresentar ou apoiar um pedido de inquérito em conformidade com o n.º 1.

11.5 - As autoridades evitarão tornar público o pedido de início de um inquérito, salvo se tiver sido tomada a decisão de iniciar um inquérito.

11.6 - Se, em circunstâncias especiais, as autoridades competentes decidirem dar início a um inquérito sem que lhes tenha sido apresentado um pedido escrito nesse sentido por parte de um ramo de produção nacional ou em seu nome, apenas o poderão fazer se estiverem em posse de elementos de prova suficientes relativos à existência de uma subvenção, de um prejuízo e de um nexo de causalidade, tal como indicado no n.º 2, para justificar o início de um inquérito.

11.7 - Os elementos de prova relativos tanto à existência de uma subvenção como de um prejuízo serão examinados simultaneamente a) para decidir se deve ou não dar-se início a um inquérito e b) em seguida, no decurso do inquérito, a contar de uma data que não será posterior ao primeiro dia em que, em conformidade com as disposições do presente Acordo, podem ser aplicadas medidas provisórias.

11.8 - Quando os produtos não forem importados directamente do país de origem, mas forem exportados a partir de um país intermédio com destino ao Membro de importação, as disposições do presente Acordo serão plenamente aplicáveis e a transacção ou as transacções serão consideradas, para efeitos do presente Acordo, como tendo sido realizadas entre o país de origem e o Membro de importação.

11.9 - Um pedido apresentado em conformidade com o n.º 1 será rejeitado e o inquérito será encerrado o mais rapidamente possível sempre que as autoridades competentes considerarem que os elementos de prova relativos, quer à subvenção quer ao prejuízo, não são suficientes para justificar a continuação do processo. O encerramento do inquérito será imediato no caso de o montante da subvenção ser de minimis ou de o volume das importações subvencionadas, efectivas ou potenciais, ou de o prejuízo serem negligenciáveis. Para efeitos do presente número, o montante da subvenção será considerado de minimis se esta for inferior a 1% ad valorem.

11.10 - Um inquérito não obsta ao processo de desalfandegamento.

11.11 - Salvo circunstâncias especiais, os inquéritos devem estar concluídos no prazo de um ano a contar da data do seu início e, de qualquer modo, o mais tardar 18 meses após essa data.

Artigo 12.º

Elementos de prova

12.1 - Os Membros interessados e todas as partes interessadas num inquérito em matéria de direitos de compensação serão notificados das informações requeridas pelas autoridades, sendo-lhes concedidas amplas possibilidades de apresentar por escrito todos os elementos de prova que considerem pertinentes para o inquérito em questão.

12.1.1 - Os exportadores, os produtores estrangeiros ou os Membros interessados disporão de um prazo de pelo menos 30 dias para responder aos questionários utilizados no inquérito em matéria de direitos de compensação (ver nota 40). Será tomado em consideração qualquer pedido de prorrogação do prazo de 30 dias e, se devidamente fundamentado, tal prorrogação será concedida sempre que possível.

12.1.2 - Sem prejuízo da obrigação de proteger informações confidenciais, os elementos de prova apresentados por escrito por um Membro interessado ou por uma parte interessada serão rapidamente colocados à disposição dos outros Membros interessados ou das outras partes interessadas que participam no inquérito.

12.1.3 - Imediatamente após o início do inquérito, as autoridades comunicarão aos exportadores conhecidos (ver nota 41) e às autoridades do Membro exportador o texto integral do pedido escrito, apresentado em conformidade com o disposto no n.º 1 do artigo 11.º, colocando-o à disposição das outras partes interessadas que o solicitem. Será tomada na devida consideração a protecção das informações confidenciais, tal como previsto no n.º 4.

(nota 40) Regra geral, o prazo concedido aos exportadores iniciar-se-á na data de recepção do questionário que, para efeito, se considera ter sido recebido uma semana após a data do seu envio ao interessado ou da sua transmissão ao representante diplomático do Membro exportador ou ainda, no caso de um território aduaneiro distinto Membro da OMC, a um representante oficial do território de exportação.

(nota 41) Entende-se que, sempre que o número dos exportadores em causa seja especialmente elevado, o texto integral do pedido apenas deverá ser comunicado às autoridades do país exportador ou à associação profissional competente, que deverá seguidamente enviar exemplares aos exportadores interessados.

12.2 - Os Membros interessados e as partes interessadas poderão também, mediante justificação, apresentar oralmente as informações. No caso de informações apresentadas oralmente, os Membros interessados e as partes interessadas deverão apresentá-las seguidamente por escrito. Qualquer decisão das autoridades responsáveis pelo inquérito apenas pode basear-se nas informações e argumentos tais como constem do processo escrito e que tenham sido colocados à disposição dos Membros interessados e das partes interessadas no inquérito, sendo tomada na devida consideração a necessidade de proteger o carácter confidencial de tais informações.

12.3 - Sempre que tal seja possível, as autoridades proporcionarão oportunamente a todos os Membros interessados e a todas as partes interessadas a possibilidade de tomarem conhecimento de todas as informações pertinentes para a apresentação dos seus processos, que não sejam confidenciais na acepção do n.º 4, e que as autoridades utilizem no inquérito em matéria de direitos de compensação, bem como a possibilidade de prepararem a sua argumentação com base em tais informações.

12.4 - Quaisquer informações que forem de natureza confidencial (ou seja, sempre que a sua divulgação possa favorecer de forma significativa um concorrente ou ter efeitos extremamente desfavoráveis para a pessoa que forneceu as informações ou para aquela junto da qual as obteve) ou que forem fornecidas a título confidencial pelas partes num inquérito serão, se devidamente justificado, tratadas como tal pelas autoridades responsáveis pela condução do inquérito. Estas informações não serão divulgadas sem a autorização expressa da parte que as tiver fornecido (ver nota 42).

12.4.1 - As autoridades exigirão a apresentação de um resumo não confidencial aos Membros interessados ou às partes interessadas que forneçam informações confidenciais. Os resumos deverão ser suficientemente pormenorizados para permitir compreender de forma adequada o conteúdo das informações comunicadas a título confidencial. Em circunstâncias excepcionais, os referidos Membros ou as referidas partes poderão indicar que estas informações não são susceptíveis de serem resumidas, devendo neste caso expor as razões pelas quais não pode ser fornecido um resumo.

12.4.2 - Se as autoridades considerarem que um pedido de tratamento confidencial não se justifica e se a pessoa que forneceu as informações não deseja torná-las públicas nem autorizar a sua divulgação, em termos gerais ou sob forma de resumo, as autoridades em causa podem não tomar em consideração tais informações, salvo se puder ser-lhes demonstrado por outra forma, de um modo convincente, que as informações são exactas (ver nota 43).

(nota 42) Os Membros têm conhecimento de que, no território de certos Membros, pode ser exigida uma divulgação através de providência cautelar redigida em termos muito precisos.

(nota 43) Os Membros acordam em que os pedidos de tratamento confidencial não devem ser rejeitados de uma forma arbitrária e que as autoridades responsáveis pela condução de um inquérito poderão solicitar uma derrogação ao tratamento confidencial, unicamente no que se refere a informações pertinentes para o processo.

12.5 - Com excepção das circunstâncias previstas no n.º 7, as autoridades deverão certificar-se, no decurso de um inquérito, da exactidão das informações fornecidas pelas partes interessadas ou pelos Membros interessados, nas quais basearam as suas conclusões.

12.6 - As autoridades responsáveis pela condução do inquérito podem proceder, em caso de necessidade, a inquéritos no território de outros Membros, desde que tenham notificado atempadamente o Membro em causa, e na condição de este não se opor a tal inquérito. Além disso, podem investigar nas instalações de uma empresa e examinar os seus registos a) se a empresa o consentir e b) se o Membro em causa tiver sido avisado desse facto e a tal não se opuser. Os procedimentos enunciados no Anexo VI aplicam-se aos inquéritos efectuados nas instalações de uma empresa. Sem prejuízo da obrigação de proteger as informações confidenciais, as autoridades colocarão os resultados destes inquéritos à disposição das empresas a que estes dizem respeito, ou permitirão a sua divulgação a estas empresas, em conformidade com o disposto no n.º 8, podendo igualmente colocar estes resultados à disposição dos requerentes.

12.7 - Quando um Membro interessado ou uma parte interessada recusar o acesso às informações necessárias ou não as comunicar num prazo razoável, ou dificultar consideravelmente a realização de um inquérito, podem ser estabelecidas determinações preliminares e finais, positivas ou negativas, com base nos dados disponíveis.

12.8 - Antes de estabelecer uma determinação final, as autoridades informarão todos os Membros interessados e todas as partes interessadas dos principais factos analisados, com base nos quais decidirão aplicar ou não medidas definitivas. Esta divulgação deverá ter lugar de modo a conceder às partes o tempo necessário para poderem defender os seus interesses.

12.9 - Para efeitos do presente Acordo, as «partes interessadas» incluirão:

i) Um exportador ou produtor estrangeiro ou o importador de um produto objecto de um inquérito ou uma associação comercial ou industrial cuja maioria dos Membros produza, exporte ou importe este produto; e

ii) Um produtor do produto similar no Membro importador ou uma associação comercial ou industrial cuja maioria dos Membros produza o produto similar no território do Membro importador.

Esta lista não obsta a que os Membros permitam que as partes nacionais ou estrangeiras não mencionadas nas alíneas supra sejam consideradas como partes interessadas.

12.10 - As autoridades concederão aos utilizadores industriais do produto objecto de um inquérito e às organizações de consumidores representativas, nos casos em que o produto seja vendido correntemente a retalho, a possibilidade de fornecer informações pertinentes para o inquérito, no que se refere à concessão de subvenções, ao prejuízo e ao nexo de causalidade.

12.11 - As autoridades tomarão na devida consideração as dificuldades enfrentadas pelas partes interessadas, designadamente as pequenas empresas, para comunicar as informações solicitadas, proporcionando-lhes toda a assistência possível.

12.12 - Os procedimentos acima definidos não têm por objectivo impedir as autoridades de um Membro de agir com diligência relativamente ao início de um inquérito, ao estabelecimento de determinações preliminares ou finais, positivas ou negativas, ou à aplicação de medidas provisórias ou finais, em conformidade com as disposições pertinentes do presente Acordo.

Artigo 13.º

Consultas

13.1 - O mais rapidamente possível após a recepção de um pedido de início de inquérito em conformidade com o artigo 11.º e, em qualquer caso, antes do início de qualquer inquérito, os Membros cujos produtos possam ser objecto de um inquérito serão convocados para consultas tendo em vista esclarecera situação no que se refere às questões referidas no n.º 2 do artigo 11.º e chegar a uma solução mutuamente acordada.

13.2 - Além disso, no decurso do período de inquérito, será concedida aos Membros cujos produtos são objecto do inquérito uma possibilidade razoável de prosseguirem as consultas a fim de esclarecer a situação concreta e chegar a uma solução mutuamente acordada (ver nota 44).

13.3 - Sem prejuízo da obrigação de conceder uma possibilidade razoável de se proceder a consultas, as presentes disposições em matéria de consultas não têm por objectivo impedir as autoridades de um Membro de agir com diligência relativamente ao início de um inquérito, ao estabelecimento de determinações preliminares ou finais, positivas ou negativas, ou à aplicação de medidas provisórias ou finais, em conformidade com as disposições do presente Acordo.

13.4 - O Membro que tencione iniciar um inquérito, ou que proceda a um inquérito, facultará, se for solicitado nesse sentido, ao Membro ou aos Membros cujos produtos sejam objecto desse inquérito o acesso aos elementos de prova não confidenciais, incluindo o resumo não confidencial das informações confidenciais utilizadas para o início ou a condução do inquérito.

(nota 44) É especialmente importante, em conformidade com as disposições deste número, que nenhuma determinação positiva, preliminar ou final, seja estabelecida sem que tenha sido proporcionada previamente uma oportunidade razoável de se proceder a consultas. Tais consultas podem constituir a base de actuação ao abrigo do disposto nas partes, II, III ou X.

Artigo 14.º

Cálculo do montante de uma subvenção em termos de vantagem para o beneficiário

Para efeitos da parte V, todos os métodos utilizados pelas autoridades responsáveis pela condução do inquérito para calcular a vantagem obtida pelo beneficiário, em conformidade com o n.º 1 do artigo 1.º, deverão constar das disposições legislativas ou de aplicação pertinentes do Membro em questão, devendo a sua aplicação em cada caso específico ser transparente e explicada de modo adequado. Além disso, estes métodos deverão ser compatíveis com as seguintes orientações gerais:

a) Uma participação do Estado no capital social de uma empresa não será considerada como conferindo uma vantagem, a menos que a decisão em matéria de investimento possa ser considerada incompatível com a prática habitual em matéria de investimentos (incluindo o fornecimento de capital de risco) dos investidores privados no território desse Membro;

b) Um empréstimo por parte do Estado não será considerado como conferindo uma vantagem, a menos que exista uma diferença entre o montante que a empresa beneficiária do empréstimo paga sobre o empréstimo do Estado e o montante que pagaria por um empréstimo comercial comparável, que poderia efectivamente obter no mercado. Neste caso, a vantagem corresponderá à diferença entre estes dois montantes;

c) Uma garantia de empréstimo concedida pelo Estado não será considerada como conferindo uma vantagem, a menos que exista uma diferença entre o montante que a empresa beneficiária da garantia paga sobre o empréstimo garantido pelo Estado e o montante que pagaria por um empréstimo comercial comparável, na ausência de garantia estatal. Neste caso, a vantagem corresponderá à diferença entre estes dois montantes, ajustada de modo a ter em conta quaisquer diferenças nas comissões;

d) O fornecimento de bens ou de serviços ou a aquisição de bens por parte do Estado não será considerado como conferindo uma vantagem, a menos que ao fornecimento corresponda uma remuneração inferior à adequada ou que à aquisição corresponda uma remuneração superior à adequada. A adequação da remuneração será determinada em relação às condições de mercado prevalecentes para o bem ou serviço em questão no país de fornecimento ou de aquisição (incluindo o preço, a qualidade, a disponibilidade, a possibilidade de comercialização, o transporte e outras condições de aquisição ou de venda).

Artigo 15.º

Determinação da existência de prejuízo (ver nota 45)

15.1 - A determinação da existência de prejuízo, para efeitos do artigo VI do GATT de 1994, basear-se-á em elementos de prova positivos e incluirá um exame objectivo: a) do volume das importações objecto de subvenções e do seu efeito sobre os preços dos produtos similares (ver nota 46) no mercado interno; b) da incidência dessas importações sobre os produtores nacionais desse produtos.

15.2 - No que diz respeito ao volume das importações objecto de subvenções, as autoridades responsáveis pela condução do inquérito analisarão se houve um aumento significativo das importações subvencionadas, quer em termos absolutos, quer em relação à produção ou ao consumo do Membro importador. No que se refere ao efeito das importações subvencionadas sobre os preços, as autoridades responsáveis pelo inquérito analisarão se houve uma subcotação importante do preço por parte das importações subvencionadas, em relação ao preço de um produto similar do Membro importador ou se, de outro modo, essas importações tiveram por efeito depreciar consideravelmente os preços ou impedir aumentos significativos que, de outro modo, teriam ocorrido. Nenhum destes elementos, considerados isoladamente ou em conjunto, proporcionará necessariamente uma orientação decisiva.

15.3 - No caso de as importações de um produto proveniente de mais de um país serem simultaneamente objecto de inquéritos em matéria de direitos de compensação, as autoridades responsáveis pelos inquéritos apenas poderão avaliar cumulativamente os efeitos dessas importações se determinarem: a) que o montante da subvenção, calculado em relação às importações provenientes de cada país, é superior ao montante de minimis definido no n.º 9 do artigo 11.º e que o volume das importações de cada país não é negligenciável, e b) que uma avaliação cumulativa dos efeitos das importações se revela apropriada, à luz das condições de concorrência entre os produtos importados e entre estes e o produto nacional similar.

15.4 - A análise da incidência das importações subvencionadas sobre o ramo de produção nacional incluirá uma avaliação de todos os elementos e índices económicos pertinentes que influenciem a situação desse sector, tais como: diminuição efectiva e potencial da produção, das vendas, da parte de mercado, dos lucros, da produtividade, do rendimento dos investimentos ou da utilização das capacidades; elementos que influenciem os preços internos; efeitos negativos, efectivos ou potenciais, sobre o fluxo de caixa (cash flow), as existências, o emprego, os salários, o crescimento, a possibilidade de obter capitais ou investimentos e, no caso da agricultura, um eventual aumento dos encargos no âmbito de programas governamentais de apoio. Esta lista não é exaustiva e nenhum destes elementos, considerados isoladamente ou em conjunto, proporcionará necessariamente uma orientação decisiva.

15.5 - Importa demonstrar que, através dos efeitos (ver nota 47) das subvenções, as importações subvencionadas causam um prejuízo na acepção do presente Acordo. A demonstração de um nexo de causalidade entre as importações subvencionadas e o prejuízo causado ao ramo de produção nacional basear-se-á no exame de todos os elementos de prova pertinentes de que as autoridades disponham. Estas últimas examinarão igualmente todos os factores conhecidos, para além das importações subvencionadas, que na mesma altura causem um prejuízo ao ramo de produção nacional, não devendo o prejuízo causado por estes outros factores ser imputado às importações subvencionadas. Os factores que poderão revelar-se pertinentes nesta matéria incluem, designadamente, os volumes e os preços das importações não subvencionadas do produto em questão, a contracção da procura ou as alterações dos padrões de consumo, as práticas comerciais restritivas dos produtores estrangeiros e nacionais, bem como a concorrência entre estes mesmos produtores, a evolução da tecnologia, e os resultados das exportações e a produtividade do ramo de produção nacional.

15.6 - O efeito das importações subvencionadas será avaliado em relação à produção nacional do produto similar, sempre que os dados disponíveis permitirem identificar esta produção separadamente, com base em critérios tais como os processos de produção, as vendas e os lucros dos produtores. Caso não seja possível identificar separadamente esta produção, os efeitos das importações subvencionadas serão avaliados através do exame produção do grupo ou da gama de produtos mais restrito, que inclua o produto similar, para o qual se possa obter a informação necessária.

15.7 - A determinação da existência de uma ameaça de prejuízo importante basear-se-á nos factos e não em meras alegações, conjecturas ou possibilidades remotas. A alteração de circunstâncias que conduziria a uma situação em que a subvenção causaria um prejuízo deverá ser nitidamente prevista e iminente. A fim de determinar se existe uma ameaça de prejuízo importante, as autoridades responsáveis pelo inquérito deverão examinar, nomeadamente, os seguintes factores:

i) Natureza da subvenção ou subvenções em questão e efeitos prováveis sobre o comércio;

ii) Uma taxa de crescimento significativa das importações subvencionadas no mercado interno que indique a probabilidade de um aumento considerável das importações;

iii) Uma capacidade suficiente e livremente disponível do exportador, ou um aumento iminente e considerável da capacidade do exportador, que indique a probabilidade de um aumento considerável das exportações subvencionadas para o mercado do Membro importador, tendo em conta a disponibilidade de outros mercados de exportação susceptíveis de absorver quaisquer exportações adicionais;

iv) A possibilidade de as importações se efectuarem a preços que tenham por efeito uma depreciação ou contenção significativa dos preços internos e probabilidade de essas importações conduzirem a um crescimento da procura de novas importações; e

v) As existências do produto objecto do inquérito.

Nenhum destes factores pode, por si só, proporcionar necessariamente uma orientação decisiva, mas a totalidade dos factores considerados deve permitir concluir que estão iminentes novas exportações subvencionadas e que, na ausência de medidas de defesa, se verificará um prejuízo importante.

15.8 - Nos casos em que as importações subvencionadas ameacem causar um prejuízo, a aplicação de medidas de compensação será considerada e decidida com especial atenção.

(nota 45) Para efeitos do presente Acordo, pelo termo «prejuízo» entende-se, salvo indicação em contrário, um prejuízo importante causado a um ramo de produção nacional, uma ameaça de prejuízo importante para um ramo de produção nacional ou um atraso importante na criação de um ramo de produção nacional; o prejuízo será interpretado em conformidade com as disposições do presente artigo.

(nota 46) No presente acordo, pela expressão «produto similar» (like product) entende-se um produto idêntico, isto é, semelhante em todos os aspectos ao produto considerado ou, na ausência de um tal produto, um outro produto que, embora não sendo semelhante em todos os aspectos, apresente características muito semelhantes às do produto considerado.

(nota 47) Tais como indicados nos n.os 2 e 4.

Artigo 16.º

Definição de ramo de produção nacional

16.1 - Para efeitos do presente Acordo e sob reserva do disposto no n.º 2, por «ramo de produção nacional» entende-se o conjunto dos produtores nacionais de produtos similares ou aqueles de entre estes cuja produção conjunta represente uma parte importante da produção nacional total desses produtos; todavia, quando os produtores estiverem ligados (ver nota 48) aos exportadores ou aos importadores, ou forem eles próprios importadores do produto alegadamente objecto de uma subvenção ou de um produto similar proveniente de outros países, a expressão «ramo de produção nacional» poderá ser interpretada como designando o resto dos produtores.

16.2 - Em circunstâncias excepcionais, o território de um Membro pode, no que diz respeito à produção em causa, ser dividido em dois ou vários mercados competitivos e os produtores de cada mercado podem ser considerados como um ramo de produção distinto se a) os produtores de tal mercado venderem a totalidade ou a quase totalidade da sua produção do produto em causa nesse mercado e se b) a procura desse mercado não for satisfeita de um modo substancial pelos produtores do produto em questão estabelecidos noutras partes do território. Em tais circunstâncias, pode considerar-se que existe prejuízo, mesmo se uma parte importante do ramo de produção nacional total não for lesada, desde que se verifique uma concentração de importações subvencionadas nesse mercado isolado e que, além disso, as importações subvencionadas causem um prejuízo aos produtores da totalidade ou da quase totalidade da produção nesse mercado.

16.3 - Sempre que «ramo de produção nacional» for interpretado como designando os produtores de uma certa zona, ou seja, um mercado tal como definido no n.º 2, apenas serão cobrados direitos de compensação sobre os produtos em causa expedidos para essa zona para consumo final. Quando as disposições constitucionais do Membro importador não permitirem a cobrança de direitos de compensação nessas condições, o Membro importador só poderá cobrar direitos de compensação sem limitações se: a) tiver sido concedida aos exportadores a possibilidade de cessarem as exportações a preços subvencionados para a zona em causa ou de darem garantias em conformidade com o artigo 18.º e caso não tenham sido dadas prontamente garantias suficientes a este respeito; b) tais direitos não puderem ser cobrados unicamente sobre os produtos de determinados produtores que abasteçam a zona em questão.

16.4 - No caso de dois ou mais países terem atingido, nas condições definidas no n.º 8, alínea a), do artigo XXIV do GATT de 1994, um grau de integração tal que apresentem características de um único mercado, unificado, considera-se que o ramo de produção do conjunto da zona de integração corresponde ao ramo de produção nacional referido nos n.os 1 e 2.

16.5 - As disposições do n.º 6 do artigo 15.º serão aplicáveis ao presente artigo.

(nota 48) Para efeitos deste número, considera-se que um produtor está ligado a um exportador ou a um importador apenas se: a) um deles controlar o outro directa ou indirectamente; b) ambos forem directa ou indirectamente controlados por um terceiro; ou c) em conjunto controlarem directa ou indirectamente um terceiro, desde que existam motivos para considerar ou para suspeitar que o efeito da ligação é tal que o produtor em causa se comporta de um modo diferente do dos produtores não ligados. Para efeitos deste número, considera-se que um controla o outro sempre que o primeiro se encontre de facto ou de direito em posição de exercer sobre o segundo um poder de autoridade ou de orientação.

Artigo 17.º

Medidas provisórias

17.1 - Só poderão ser aplicadas medidas provisórias caso:

a) Tenha sido iniciado um inquérito em conformidade com as disposições do artigo 11.º, tenha sido publicado um aviso para este efeito e os Membros interessados e as partes interessadas tenham tido a possibilidade de prestar informações e apresentar observações;

b) Uma determinação preliminar positiva tenha estabelecido que existe uma subvenção e um prejuízo a um ramo de produção nacional; e

c) As autoridades competentes considerem que tais medidas são necessárias para impedir que seja causado prejuízo durante o período de inquérito.

17.2 - As medidas provisórias poderão assumir a forma de direitos de compensação provisórios, garantidos através de depósitos em numerário ou de cauções, iguais ao montante da subvenção provisoriamente calculado.

17.3 - Só poderão ser aplicadas medidas provisórias 60 dias após a data de início do inquérito.

17.4 - A aplicação de medidas provisórias deverá limitar-se a um período tão curto quanto possível, não superior a quatro meses.

17.5 - Na aplicação de medidas provisórias serão observadas as disposições pertinentes do artigo 19.º

Artigo 18.º

Compromissos

1 - Um processo pode (ver nota 49) ser suspenso ou encerrado sem instituição de medidas provisórias ou de direitos de compensação se tiverem sido recebidos compromissos voluntários e satisfatórios, por força dos quais:

a) O Governo do Membro exportador aceita eliminar ou limitar a subvenção ou adoptar outras medidas relativamente aos seus efeitos; ou

b) O exportador aceita rever os seus preços de modo a que as autoridades responsáveis pelo inquérito considerem que o efeito prejudicial da subvenção foi eliminado. Os aumentos de preços resultantes de tais compromissos não serão superiores ao necessário para compensar o montante da subvenção. É desejável que os aumentos de preços sejam inferiores ao montante da subvenção no caso de serem suficientes para eliminar o prejuízo causado ao ramo de produção nacional.

18.2 - Os compromissos apenas serão oferecidos ou aceites se as autoridades do Membro importador tiverem estabelecido uma determinação preliminar positiva da existência de uma subvenção e de um prejuízo causado por esta subvenção e, no caso de compromissos por parte dos exportadores, se tiverem obtido o consentimento do Membro exportador.

18.3 - Os compromissos oferecidos não serão necessariamente aceites se as autoridades do Membro importador considerarem a sua aceitação irrealista, no caso de o número de exportadores efectivos ou potenciais ser muito elevado, por exemplo, ou por outros motivos, designadamente de política geral. Nesse caso, e sempre que adequado, as autoridades comunicarão ao exportador os motivos que as levaram a considerar inoportuna a aceitação de um compromisso e, na medida do possível, concederão ao exportador a possibilidade de apresentar observações a este propósito.

18.4 - Mesmo que um compromisso seja aceite, o inquérito relativo à subvenção e ao prejuízo será concluído se o Membro exportador assim o desejar ou o Membro importador assim o decidir. Neste caso, se for estabelecida uma determinação negativa da existência de uma subvenção ou de um prejuízo, o compromisso caducará automaticamente, excepto nos casos em que tal determinação resulte em grande parte da existência de um compromisso. Nesses casos, as autoridades competentes podem exigir que o compromisso seja mantido durante um período razoável, em conformidade com as disposições do presente Acordo. Na eventualidade de uma determinação positiva da existência de subvenção e de prejuízo, o compromisso será mantido de acordo com os seus termos e as disposições do presente Acordo.

18.5 - Embora os compromissos em matéria de preços possam ser sugeridos pelas autoridades do Membro importador, nenhum exportador será obrigado a subscrevê-los. O facto de os Governos ou os exportadores não oferecerem tais compromissos, ou não aceitarem um convite para o fazer, não afectará de forma alguma o exame da questão. Contudo, as autoridades têm liberdade para decidir que uma ameaça de prejuízo tem mais possibilidade de se concretizar se as importações subvencionadas continuarem.

18.6 - As autoridades de um Membro importador poderão solicitar a qualquer Governo ou exportador de que tenham aceite um compromisso que forneça periodicamente informações sobre o cumprimento de tal compromisso e autorize a verificação dos dados pertinentes. Em caso de violação de um compromisso, as autoridades do Membro importador poderão, por força do presente Acordo e em conformidade com as suas disposições, tomar medidas de urgência que podem consistir na aplicação imediata de medidas provisórias, com base nas melhores informações disponíveis. Em tais casos, em conformidade com o presente Acordo, podem ser cobrados direitos definitivos sobre os produtos introduzidos no consumo no máximo 90 dias antes da aplicação dessas medidas provisórias, não sendo, no entanto, aplicadas quaisquer imposições retroactivas sobre as importações efectuadas antes da violação do compromisso.

(nota 49) O termo «pode» não será interpretado como autorizando simultaneamente a continuação do processo e a aplicação dos compromissos, salvo nos casos previstos no n.º 4.

Artigo 19.º

Instituição e cobrança de direitos de compensação

19.1 - Se, após terem sido envidados esforços razoáveis para levar as consultas a bom termo, um Membro concluir definitivamente que existe uma subvenção a determinar o seu montante e que, devido aos efeitos da subvenção, as importações subvencionadas causam prejuízo, esse Membro pode instituir um direito de compensação, em conformidade com as disposições do presente artigo, a menos que a subvenção ou subvenções sejam suprimidas.

19.2 - Incumbe às autoridades do Membro importador a decisão de instituir ou não um direito de compensação quando estiverem preenchidas todas as condições necessárias para a sua instituição, bem como a decisão de fixar o montante do direito de compensação a um nível igual ou inferior ao montante total da subvenção. É desejável que a instituição do direito seja facultativa no território de todos os Membros, que o direito seja inferior ao montante total da subvenção, se o mesmo for suficiente para eliminar o prejuízo causado ao ramo de produção nacional, e que se definam procedimentos que permitam às autoridades competentes tomar devidamente em consideração as observações formuladas pelas partes nacionais interessadas (ver nota 50) cujos interesses poderiam ser lesados pela instituição de um direito de compensação.

19.3 - Sempre que for instituído um direito de compensação sobre um determinado produto, o referido direito, de um montante adequado, incidirá indiscriminadamente sobre as importações do referido produto, relativamente às quais se tenha verificado que são objecto de subvenções e que causam prejuízo, independentemente da sua origem, com excepção das importações provenientes de países que tiverem renunciado às subvenções em causa ou cujos compromissos tenham sido aceites nos termos do presente Acordo. Qualquer exportador cujas exportações estejam sujeitas a um direito de compensação definitivo, mas que não tenham sido efectivamente objecto de um inquérito por outros motivos que não a recusa em colaborar, terá direito a um exame acelerado para que as autoridades responsáveis pelo inquérito estabeleçam, o mais rapidamente possível, uma taxa de direito de compensação específica para esse exportador.

19.4 - Não será cobrado (ver nota 51) sobre um produto importado qualquer direito de compensação superior ao montante da subvenção cuja existência tenha sido determinada, calculado por unidade do produto subvencionado e exportado.

(nota 50) Para efeitos deste número, a expressão «partes nacionais interessadas» englobará os consumidores e os utilizadores industriais do produto importado objecto do inquérito.

(nota 51) O termo «cobrar», tal como é utilizado no presente Acordo, designa a instituição ou a cobrança legais, a título definitivo ou final, de um direito ou de uma imposição.

Artigo 20.º

Retroactividade

20.1 - Só serão aplicáveis medidas provisórias e direitos de compensação sobre produtos introduzidos no consumo após a data de entrada em vigor da decisão adoptada em conformidade com o disposto no n.º 1 do artigo 17.º e no n.º 1 do artigo 19.º, respectivamente, sem prejuízo das excepções a seguir enunciadas.

20.2 - No caso de uma determinação final de existência de um prejuízo (mas não de uma ameaça de prejuízo, nem de um atraso importante na criação de um ramo de produção) ou, no caso de uma determinação final de ameaça de prejuízo, sempre que, na ausência de medidas provisórias, o efeito das importações subvencionadas tivesse conduzido a uma determinação da existência de prejuízo, podem ser cobrados retroactivamente direitos de compensação relativos ao período durante o qual as medidas provisórias, se for esse o caso, tenham sido aplicadas.

20.3 - Se o direito de compensação definitivo for superior ao montante garantido pelo depósito em numerário ou pela caução, a diferença não será cobrada. Se o direito definitivo for inferior ao montante garantido pelo depósito em numerário ou pela caução, o excedente será restituído ou a caução liberada rapidamente.

20.4 - Sob reserva do disposto no n.º 2, em caso de determinação da existência de uma ameaça de prejuízo ou de um atraso considerável (sem que exista ainda prejuízo), só pode ser instituído um direito de compensação definitivo a partir da data da determinação da existência de ameaça de prejuízo ou de atraso considerável, sendo restituído qualquer depósito em numerário efectuado durante o período de aplicação das medidas provisórias e rapidamente liberada qualquer caução.

20.5 - Quando uma determinação final for negativa, qualquer depósito em numerário efectuado durante o período de aplicação das medidas provisórias será restituído e rapidamente liberada qualquer caução.

20.6 - Em circunstâncias críticas, quando relativamente ao produto subvencionado em questão as autoridades concluírem que existe um prejuízo dificilmente reparável causado por importações maciças, realizadas num período relativamente curto, de um produto que beneficia de subvenções pagas ou concedidas de modo incompatível com as disposições do GATT de 1994 e do presente Acordo, e que, para evitar que o prejuízo se reproduza, se afigura necessário instituir retroactivamente direitos de compensação sobre estas importações, os direitos de compensação definitivos poderão ser instituídos em relação às importações introduzidas no consumo no máximo 90 dias antes da data de instituição das medidas provisórias.

Artigo 21.º

Duração e reexame dos direitos de compensação e dos compromissos

21.1 - Um direito de compensação permanecerá em vigor apenas durante o período e na medida necessários para neutralizar a subvenção que causa prejuízo.

21.2 - Sempre que tal se justifique, as autoridades reexaminarão a necessidade de manter o direito, por sua própria iniciativa ou, na condição de ter decorrido um período razoável desde a instituição do direito de compensação definitivo, a pedido de qualquer parte interessada que possa justificar, através de informações precisas, a necessidade de tal reexame. As partes interessadas podem solicitar às autoridades que examinem se a manutenção do direito é necessária para compensar a subvenção, se seria provável que o prejuízo subsistisse ou se reproduzisse no caso de o direito ser eliminado ou alterado, ou qualquer uma destas hipóteses. Se, na sequência do reexame efectuado nos termos do presente número, as autoridades considerarem que o direito de compensação já não se justifica, tal direito será imediatamente suprimido.

21.3 - Não obstante o disposto nos n.os 1 e 2, qualquer direito de compensação definitivo será suprimido o mais tardar cinco anos após a sua instituição (ou, nos termos do n.º 2, a contar da data do último reexame, caso este tenha incidido simultaneamente sobre a subvenção e o prejuízo, ou nos termos do presente número), a menos que as autoridades considerem, na sequência de um reexame efectuado antes dessa data, quer por sua própria iniciativa quer na sequência de um pedido devidamente justificado apresentado pelo ramo de produção nacional ou em seu nome, num período razoável antes dessa data, que a caducidade do direito é susceptível de conduzir à continuação ou reincidência da subvenção e do prejuízo (ver nota 52). O direito poderá permanecer em vigor na pendência do resultado desse reexame.

21.4 - As disposições do artigo 12.º relativas aos elementos de prova e ao processo serão aplicáveis a todos os reexames efectuados nos termos do presente artigo. Qualquer reexame deste tipo será efectuado o mais rapidamente possível e deverá encontrar-se normalmente concluído no prazo de 12 meses a contar da data do seu início.

21.5 - As disposições do presente artigo serão aplicáveis mutatis mutandis aos compromissos aceites em conformidade com o artigo 18.º

(nota 52) Sempre que o montante do direito de compensação seja fixado retroactivamente, e se no âmbito do processo mais recente de fixação se tiver concluído que não deverá ser cobrado qualquer direito, tal conclusão não obrigará por si só as autoridades a suprimir o direito definitivo.

Artigo 22.º

Aviso público e explicação das determinações

22.1 - Sempre que as autoridades considerem que existem elementos de prova suficientes para justificar o início de um inquérito em conformidade com o artigo 11.º, notificarão desse facto o Membro ou Membros cujos produtos serão objecto do inquérito e as outras partes conhecidas como interessadas pelas autoridades responsáveis pelo inquérito, sendo publicado o aviso correspondente.

22.2 - O aviso público relativo ao início de um inquérito deve incluir, ou facultar através de um relatório distinto (ver nota 53), as informações apropriadas sobre os seguintes pontos:

i) Nome do país ou países exportadores e produto em causa;

ii) Data de início do inquérito;

iii) Descrição da prática ou práticas de subvenção que serão objecto de inquérito;

iv) Resumo dos elementos nos quais se baseia a alegação de existência de prejuízo;

v) Endereço para o qual os Membros interessados e as partes interessadas deverão enviar as suas observações; e

vi) Prazos concedidos aos Membros interessados e às partes interessadas para a apresentação dos seus pontos de vista.

22.3 - Qualquer determinação preliminar ou final, positiva ou negativa, qualquer decisão de aceitar um compromisso em conformidade com o artigo 18.º, bem como a caducidade desse compromisso e a supressão de um direito de compensação definitivo serão objecto de aviso público. O aviso deverá expor de forma suficientemente pormenorizada, ou facultar através de um relatório distinto, as verificações e conclusões a que se tenha chegado relativamente a todos os aspectos de facto e de direito considerados importantes pelas autoridades responsáveis pelo inquérito. Todos estes avisos e relatórios serão comunicados ao Membro ou Membros cujos produtos sejam objecto da determinação ou do compromisso e às outras partes conhecidas como interessadas.

22.4 - O aviso público relativo à instituição de medidas provisórias deverá fornecer, ou facultar através de um relatório distinto, explicações suficientemente pormenorizadas sobre as determinações preliminares relativas à existência de uma subvenção e de um prejuízo, mencionando os aspectos de facto e de direito que conduziram à aceitação ou à rejeição dos argumentos. Tomando devidamente em consideração a obrigação de proteger as informações confidenciais, o aviso ou relatório mencionará, em especial:

i) Os nomes dos fornecedores ou, sempre que tal não seja possível, os nomes dos países fornecedores em causa;

ii) Uma designação do produto suficiente para efeitos aduaneiros;

iii) O montante da subvenção estabelecido e a base utilizada para determinar a existência de uma subvenção;

iv) As considerações relativas à determinação da existência de prejuízo, tais como previstas no artigo 15.º;

v) As principais razões que conduziram à determinação.

22.5 - O aviso público de encerramento ou de suspensão do inquérito, no caso de uma determinação positiva que preveja a instituição de um direito definitivo ou a aceitação de um compromisso, deverá incluir, ou facultar através de um relatório distinto, todas as informações pertinentes sobre os elementos de facto e de direito, bem como os motivos que conduziram à instituição de medidas finais ou à aceitação de um compromisso, tomando devidamente em consideração a obrigação de proteger as informações confidenciais. O aviso ou relatório incluirá, designadamente, as informações descritas no n.º 4, bem como os motivos da aceitação ou da rejeição dos argumentos ou alegações pertinentes dos Membros interessados, bem como dos exportadores e dos importadores.

22.6 - Qualquer aviso público de encerramento ou de suspensão de um inquérito, na sequência da aceitação de um compromisso em conformidade com o artigo 18.º, incluirá, ou facultará através de um relatório distinto, a parte não confidencial do compromisso.

22.7 - As disposições do presente artigo aplicam-se mutatis mutandis ao início e à conclusão dos reexames efectuados em conformidade com o artigo 21.º, bem como às decisões relativas à aplicação de direitos a título retroactivo tomadas em conformidade com o artigo 20.º

(nota 53) No caso de as autoridades fornecerem informações e explicações, em conformidade com o presente artigo, num relatório distinto, deverão torná-lo facilmente acessível ao público.

Artigo 23.º

Reexame judicial

Cada Membro cuja legislação nacional inclua disposições relativas às medidas de compensação deverá dispor de tribunais ou instâncias judiciais, administrativos ou de arbitragem, tendo em vista, nomeadamente, rever o mais rapidamente possível as medidas administrativas relacionadas com as determinações finais e os reexames dessas determinações, na acepção do artigo 21.º Tais tribunais ou instâncias serão independentes das autoridades responsáveis pela determinação ou reexame em questão, permitindo o acesso ao reexame a todas as partes interessadas que participaram no procedimento administrativo e que sejam directa e individualmente afectadas pelas medidas administrativas.

PARTE VI

Instituições

Artigo 24.º

Comité das Subvenções e Medidas de Compensação e outros órgãos auxiliares

24.1 - É instituído um Comité das Subvenções e Medidas de Compensação, composto por representantes de cada um dos Membros. O Comité elegerá o seu presidente e reunir-se-á pelo menos duas vezes por ano, bem como a pedido de qualquer Membro, em conformidade com as disposições pertinentes do presente Acordo. O Comité desempenhará as funções que lhe são conferidas pelo presente Acordo ou pelos Membros, concedendo aos Membros a possibilidade de procederem a consultas sobre qualquer questão relativa ao funcionamento do Acordo ou à consecução dos seus objectivos. O Secretariado da OMC assegurará o secretariado do Comité.

24.2 - O Comité pode instituir os órgãos auxiliares apropriados.

24.3 - O Comité instituirá um Grupo Permanente de Peritos composto por cinco pessoas independentes, altamente qualificadas em matéria de subvenções e de relações comerciais. Os peritos serão eleitos pelo Comité e um deles será substituído todos os anos. Poderá ser solicitado ao Grupo Permanente de Peritos que preste assistência a um painel, tal como previsto no n.º 5 do artigo 4.º O Comité poderá também solicitar um parecer relativamente à existência e à natureza de qualquer subvenção.

24.4 - O GPP poderá ser consultado por qualquer Membro e formular pareceres relativamente à natureza de qualquer subvenção que o Membro em questão mantenha ou se proponha conceder. Estes pareceres serão confidenciais e não poderão ser invocados nos procedimentos previstos no artigo 7.º

24.5 - No desempenho das suas funções, o Comité e os órgãos auxiliares poderão consultar qualquer fonte que julguem apropriada e solicitar-lhe informações. Todavia, antes de solicitar informações a uma fonte sob a jurisdição de um Membro, o Comité ou o órgão auxiliar informará desse facto o Membro em causa.

PARTE VII

Notificação e vigilância

Artigo 25.º

Notificações

25.1 - Os Membros acordam em que, sem prejuízo do disposto no n.º 1 do artigo XVI do GATT de 1994, as suas notificações de subvenções serão apresentadas o mais tardar a 30 de Junho de cada ano e que as referidas notificações serão conformes às disposições dos n.os 2 a 6.

25.2 - Os Membros notificarão qualquer subvenção, tal como definida no n.º 1 do artigo 1.º e considerada específica na acepção do artigo 2.º, concedida ou mantida nos seus territórios.

25.3 - O conteúdo das notificações deverá ser suficientemente específico, a fim de permitir a outros Membros avaliar os efeitos sobre o comércio e compreender o funcionamento dos programas de subvenção notificados. A este propósito, e sem prejuízo do conteúdo e da forma do questionário relativo às subvenções (ver nota 54), os Membros assegurarão que as suas notificações incluam as seguintes informações:

i) Forma da subvenção (subsídio, empréstimo, benefício fiscal, etc.);

ii) Subvenção por unidade ou, caso tal não seja possível, montante total ou montante anual previsto no orçamento para esta subvenção (com indicação, se possível, da subvenção média por unidade do ano precedente);

iii) Objectivos gerais e/ou finalidade da subvenção;

iv) Duração da subvenção e/ou qualquer prazo relacionado com esta subvenção;

v) Dados estatísticos que permitam avaliar os efeitos da subvenção sobre o comércio.

25.4 - No caso de os elementos referidos no n.º 3 não constarem da notificação, a própria notificação deverá explicar os motivos dessa ausência.

25.5 - Se as subvenções forem concedidas a produtos ou sectores específicos, as notificações deverão ser organizadas por produto ou por sector.

25.6 - Os Membros que considerem que nos seus territórios não existem quaisquer medidas que devam ser objecto de notificações, em conformidade com o n.º 1 do artigo XVI do GATT de 1994 e com o presente Acordo, informarão por escrito o Secretariado desse facto.

25.7 - Os Membros reconhecem que a notificação de uma medida não prejudica o estatuto jurídico desta última no âmbito do GATT de 1994 e do presente Acordo, nem os seus efeitos na acepção do presente Acordo ou a natureza da própria medida.

25.8 - Qualquer Membro pode, em qualquer altura, solicitar por escrito informações relativas à natureza e ao alcance de uma subvenção concedida ou mantida por outro Membro (incluindo qualquer das subvenções referidas na parte IV), bem como explicações dos motivos pelos quais se considerou que uma medida específica não requeria notificação.

25.9 - Os Membros aos quais seja solicitada tal informação deverão prestá-la tão rapidamente quanto possível e de forma completa, disponibilizando-se para prestar informações adicionais ao Membro que apresente um pedido nesse sentido. Deverão designadamente fornecer-lhe informações suficientemente pormenorizadas para lhe permitir avaliar em que medida respeitam as condições enunciadas no presente Acordo. Qualquer Membro que considere que essas informações não foram prestadas pode submeter o assunto à apreciação do Comité.

25.10 - Qualquer Membro que considere que uma prática de um outro Membro, com os mesmos efeitos de uma subvenção, não foi notificada em conformidade com as disposições do n.º 1 do artigo XVI do GATT de 1994 e com as disposições do presente artigo poderá submeter a questão à apreciação desse outro Membro. Se, após esta diligência, a alegada subvenção não for prontamente notificada, o próprio Membro poderá submeter a questão à apreciação do Comité.

25.11 - Os Membros apresentarão ao Comité, o mais rapidamente possível, um relatório sobre todas as medidas preliminares ou finais adoptadas em matéria de direitos de compensação. Os outros Membros poderão consultar estes relatórios no Secretariado. Os Membros apresentarão igualmente relatórios semestrais relativos a todas as medidas adoptadas em matéria de direitos de compensação no decurso do semestre precedente. Estes relatórios semestrais deverão obedecer a uma fórmula tipo acordada.

25.12 - Cada Membro notificará ao Comité: a) as autoridades competentes para iniciar e realizar os inquéritos referidos no artigo 11.º; e b) os seus procedimentos internos aplicáveis ao início e à condução desses inquéritos.

(nota 54) O Comité criará um grupo de trabalho encarregado de rever o conteúdo e a forma do questionário que figura em BISD, 9S 193-194.

Artigo 26.º

Vigilância

26.1 - O Comité examinará nas sessões extraordinárias, a realizar de três em três anos, as notificações novas e completas apresentadas nos termos do n.º 1 do artigo XVI do GATT de 1994 e do n.º 1 do artigo 25.º do presente Acordo. As notificações apresentadas nos períodos intercalares (notificações de actualização) serão examinadas nas reuniões ordinárias do Comité.

26.2 - O Comité examinará, aquando de cada reunião ordinária, os relatórios apresentados nos termos do n.º 11 do artigo 25.º

PARTE VIII

Países em desenvolvimento Membros

Artigo 27.º

Tratamento especial e diferenciado em favor dos países em desenvolvimento Membros

27.1 - Os Membros reconhecem que as subvenções podem desempenhar um importante papel nos programas de desenvolvimento económico dos países em desenvolvimento Membros.

27.2 - A proibição enunciada no n.º 1, alínea a), do artigo 3.º não se aplica:

a) Aos países em desenvolvimento Membros referidos no Anexo VII;

b) Aos restantes países em desenvolvimento Membros, durante um período de oito anos a contar da data de entrada em vigor do Acordo OMC, sob reserva do cumprimento das disposições do n.º 4.

27.3 - A proibição enunciada no n.º 1, alínea b), do artigo 3.º não se aplica aos países em desenvolvimento Membros durante um período de cinco anos, nem aos países menos avançados Membros durante um período de oito anos a contar da data de entrada em vigor do Acordo OMC.

27.4 - Os países em desenvolvimento Membros referidos na alínea b) do n.º 2 eliminarão as suas subvenções às exportações no período de oito anos acima referido, de preferência de uma forma progressiva. No entanto, os países em desenvolvimento Membros não aumentarão o nível das suas subvenções às exportações (ver nota 55) e eliminá-las-ão num prazo mais curto do que o previsto no presente número, quando o recurso a tais subvenções não corresponda às suas necessidades de desenvolvimento. No caso de um país em desenvolvimento Membro considerar necessário aplicar tais subvenções para além do período de 8 anos, o mais tardar um ano antes do termo deste período, iniciará consultas com o Comité que, após ter examinado todas as necessidades económicas, financeiras e de desenvolvimento pertinentes do Membro em questão, determinará se se justifica uma prorrogação deste prazo. Se o Comité determinar que a prorrogação se justifica, o país em desenvolvimento Membro em questão realizará consultas anuais com o Comité para determinar se é necessário manter as subvenções. Se o Comité não concluir pela necessidade de manter as subvenções, o país em desenvolvimento Membro eliminará as restantes subvenções às exportações no prazo de dois anos a contar do final do último período autorizado.

27.5 - Qualquer país em desenvolvimento Membro, cujas exportações de um determinado produto se tenham tornado competitivas, eliminará as subvenções às exportações desse(s) produto(s) no prazo de dois anos. No entanto, relativamente aos países em desenvolvimento Membros referidos no Anexo VII, cujas exportações de um ou diversos produtos se tenham tornado competitivas, as subvenções às exportações de tais produtos serão progressivamente eliminadas ao longo de um período de oito anos.

27.6 - Considera-se que as exportações de um determinado produto são competitivas se as exportações de um país em desenvolvimento Membro tiverem atingido uma quota igual ou superior a 3,25% do comércio mundial desse produto durante dois anos civis consecutivos. A competitividade das exportações será determinada quer a) com base numa notificação do país em desenvolvimento Membro cujas exportações se tornaram competitivas quer b) com base num cálculo efectuado pelo Secretariado a pedido de qualquer Membro. Para efeitos do presente número, considera-se que um produto corresponde a uma posição da Nomenclatura do Sistema Harmonizado. Os Membros acordam em que o Comité examinará a aplicação da presente disposição cinco anos após a data de entrada em vigor do Acordo OMC.

27.7 - As disposições do artigo 4.º não se aplicam a um país em desenvolvimento Membro sempre que se trate de subvenções às exportações compatíveis com as disposições dos n.os 2 a 5. Neste caso, serão aplicáveis as disposições do artigo 7.º

27.8 - Para efeitos da aplicação do n.º 1 do artigo 6.º, não se presumirá que uma subvenção concedida por um país em desenvolvimento Membro causa um prejuízo grave, tal como definido no presente Acordo. A existência de tal prejuízo grave, nas circunstâncias referidas no n.º 9, será demonstrada por elementos de prova positivos, em conformidade com o disposto nos n.os 3 a 8 do artigo 6.º

27.9 - No caso de subvenções passíveis de recurso concedidas ou mantidas por um país em desenvolvimento Membro, com excepção das referidas no n.º 1 do artigo 6.º, não poderá ser autorizada nem empreendida qualquer acção nos termos do artigo 7.º, a menos que se verifique que a subvenção em causa tem por efeitos anular ou comprometer concessões pautais ou outras obrigações decorrentes do GATT de 1994, de tal forma que desvie as importações de um produto similar de outro Membro do mercado do país em desenvolvimento Membro que a concede, ou dificulte tais importações ou caso seja causado um prejuízo a um ramo de produção nacional de um Membro importador.

27.10 - Os inquéritos em matéria de direitos de compensação relativos a produtos originários de países em desenvolvimento Membros serão encerrados logo que as autoridades competentes tenham determinado:

a) Que o nível global das subvenções concedidas relativamente ao produto em causa não ultrapassa 2% do seu valor calculado numa base unitária; ou

b) Que o volume das importações subvencionadas representa menos de 4% das importações totais do produto similar para o Membro importador, a menos que as importações provenientes dos países em desenvolvimento Membros, cujas partes individuais das importações totais representem menos de 4%, correspondam, em conjunto, a mais de 9% das importações totais do produto similar no Membro importador.

27.11 - No que respeita aos países em desenvolvimento Membros referidos na alínea b) do n.º 2 que tenham eliminado as subvenções às exportações antes do termo do período de oito anos a contar da data de entrada em vigor do Acordo OMC, bem como aos países em desenvolvimento Membros referidos no Anexo VII, o valor indicado na alínea a) do n.º 10 será de 3% e não de 2%. A presente disposição será aplicável a partir da data em que a eliminação das subvenções às exportações tenha sido notificada ao Comité e desde que o país em desenvolvimento Membro autor da notificação não conceda subvenções às exportações. A presente disposição deixará de ser aplicável oito anos após a data de entrada em vigor do Acordo OMC.

27.12 - Qualquer determinação de de minimis nos termos do n.º 3 do artigo 15.º obedecerá às disposições dos n.os 10 e 11.

27.13 - As disposições da parte III do presente Acordo não serão aplicáveis às remissões directas de dívidas nem às subvenções destinadas a cobrir custos sociais, independentemente da sua forma, incluindo a renúncia a receitas públicas e outras transferências de elementos do passivo, sempre que tais subvenções sejam concedidas no âmbito de um programa de privatização de um país em desenvolvimento Membro e estejam directamente ligadas a tal programa, e na condição de quer este programa quer as subvenções a ele associadas serem aplicados durante um período limitado e serem notificados ao Comité, e de o programa acabar por conduzir à privatização da empresa em questão.

27.14 - Sempre que um Membro interessado o solicitar, o Comité procederá a um exame de uma prática específica de subvenção às exportações por parte de um país em desenvolvimento Membro, a fim de determinar se tal prática está em conformidade com as suas necessidades de desenvolvimento.

27.15 - Sempre que um país em desenvolvimento Membro interessado o solicitar, o Comité procederá a um exame de uma medida de compensação específica, a fim de determinar se tal medida é compatível com as disposições dos n.os 10 e 11, tal como aplicáveis ao país em desenvolvimento Membro em questão.

(nota 55) Relativamente aos países em desenvolvimento Membros que na data de entrada em vigor do Acordo OMC não concedam subvenções às exportações, a presente disposição aplicar-se-á com base no nível das subvenções às exportações concedidas em 1986.

PARTE IX

Disposições transitórias

Artigo 28.º

Programas existentes

28.1 - Os programas de subvenções existentes no território de um Membro antes da data da assinatura por esse Membro do Acordo OMC que sejam incompatíveis com as disposições do presente Acordo:

a) Serão notificados ao Comité, o mais tardar 90 dias após a entrada em vigor do Acordo OMC relativamente a esse Membro; e

b) Serão adaptados a fim de se conformarem às disposições do presente Acordo, no prazo de três anos a contar da data de entrada em vigor do Acordo OMC relativamente a esse Membro, não estando até essa altura sujeitos às disposições da parte II.

28.2 - Os membros não poderão alargar o âmbito de tais programas nem proceder à sua recondução após o seu termo.

Artigo 29.º

Transformação numa economia de mercado

29.1 - Os Membros que se encontrem num processo de transição de um regime de economia de planeamento central para uma economia de mercado, baseada na livre concorrência, poderão aplicar os programas e medidas necessários para essa transformação.

29.2 - No que se refere a estes Membros, os programas de subvenções abrangidos pelo artigo 3.º e notificados em conformidade com o n.º 3 serão progressivamente eliminados ou adaptados de forma a conformar-se às disposições do artigo 3.º, no prazo de sete anos a contar da data de entrada em vigor do Acordo que institui a OMC. Nestes casos, não será aplicável o disposto no artigo 4.º Além disso, durante o mesmo período:

a) Os programas de subvenções abrangidos pelo n.º 1, alínea d), do artigo 6.º não serão passíveis de recurso nos termos do artigo 7.º;

b) No que se refere às outras subvenções passível de recurso, serão aplicáveis as disposições do n.º 9 do artigo 27.º

29.3 - Os programas de subvenções abrangidos pelo artigo 3.º serão notificados ao Comité o mais brevemente possível após a entrada em vigor do Acordo OMC. Outras notificações relativas a tais subsídios poderão ser efectuadas num prazo de dois anos a contar da data de entrada em vigor do Acordo OMC.

29.4 - Em circunstâncias excepcionais, os Membros referidos no n.º 1 poderão ser autorizados pelo Comité a não respeitarem os programas e medidas notificados e os calendários fixados, se tal for considerado necessário para o processo de transformação.

PARTE X

Resolução de litígios

Artigo 30.º

As disposições dos artigos XXII e XXIII do GATT de 1994, tal como interpretadas e aplicadas em conformidade com o Memorando de Entendimento sobre a Resolução de Litígios, aplicar-se-ão às consultas e à resolução de litígios nos termos do presente Acordo, salvo disposição em contrário deste último.

PARTE XI

Disposições finais

Artigo 31.º

Aplicação provisória

As disposições do n.º 1 do artigo 6.º, bem como as dos artigos 8.º e 9.º, serão aplicáveis por um período de cinco anos a partir da data de entrada em vigor do Acordo OMC. O mais tardar 180 dias antes do termo desse período, o Comité examinará a aplicação destas disposições, a fim de determinar se será conveniente prorrogar a sua aplicação por um novo período, quer com a sua actual redacção quer após alterações.

Artigo 32.º

Outras disposições finais

32.1 - Não pode ser adoptada qualquer medida específica contra uma subvenção concedida por um outro Membro, se tal não estiver em conformidade com as disposições do GATT de 1994, interpretadas à luz do presente Acordo (ver nota 56).

32.2 - Não podem ser formuladas reservas no que respeita às disposições do presente Acordo sem o consentimento dos outros Membros.

32.3 - Sem prejuízo do disposto no n.º 4, as disposições do presente Acordo serão aplicáveis aos inquéritos e aos reexames de medidas existentes, iniciados na sequência de um pedido apresentado na data de entrada em vigor do Acordo OMC relativamente a um Membro, ou após essa data.

32.4 - Para efeitos da aplicação do n.º 3 do artigo 21.º, considera-se que as medidas de compensação existentes foram instituídas o mais tardar na data de entrada em vigor do Acordo OMC relativamente a um determinado Membro, excepto no caso de a legislação interna desse Membro, em vigor nessa data, incluir já uma cláusula do tipo previsto na disposição acima referida.

32.5 - Cada membro tomará todas as medidas necessárias, de carácter geral ou específico, para assegurar, o mais tardar na data em que o Acordo OMC entrar em vigor relativamente a este Membro, a conformidade das suas disposições legislativas, regulamentares e procedimentos administrativos com as disposições do presente Acordo, na medida em que possam aplicar-se ao Membro em questão.

32.6 - Cada Membro informará o Comité de qualquer alteração introduzida nas suas disposições legislativas e regulamentares relacionadas com o presente Acordo, bem como na aplicação de tais disposições.

32.7 - O Comité examinará anualmente o funcionamento e a aplicação do presente Acordo, tendo em conta os seus objectivos. O Comité informará anualmente o Conselho do Comércio de Mercadorias de qualquer alteração ocorrida durante o período abrangido por esse exame.

32.8 - Os Anexos do presente Acordo fazem dele parte integrante.

(nota 56) Esta disposição não pretende impedir a adopção de medidas ao abrigo de outras disposições pertinentes do GATT de 1994, sempre que apropriado.

ANEXO I

LISTA EXEMPLIFICATIVA DE SUBVENÇÕES ÀS EXPORTAÇÕES

a) Concessão pelos Estados de subvenções directas a empresas ou a ramos de produção, subordinada aos resultados das exportações.

b) Sistemas de não retrocessão de divisas e quaisquer outras práticas idênticas que impliquem a concessão de um prémio às exportações.

c) Tarifas de transporte interno e de frete aplicadas às expedições para exportação, asseguradas ou impostas pelos Estados, em condições mais favoráveis do que as aplicadas às expedições destinadas ao mercado interno.

d) Fornecimento pelos Estados ou por organismos públicos, directa ou indirectamente, através de regimes aplicados sob orientação do Estado, de produtos ou de serviços importados ou nacionais, destinados a serem utilizados na produção de mercadorias para exportação, em condições mais favoráveis do que as aplicadas ao fornecimento de produtos ou de serviços similares ou directamente concorrentes para serem utilizados na produção de mercadorias destinadas ao consumo interno, se (no caso dos produtos) tais condições forem mais favoráveis do que as condições comerciais (ver nota 57) de que os respectivos exportadores podem beneficiar nos mercados mundiais.

e) Isenção, remissão ou diferimento, na totalidade ou em parte, dos impostos directos (ver nota 58) ou das contribuições para a segurança social pagas ou a pagar pelas empresas industriais ou comerciais, concedidos especificamente a título das suas exportações (ver nota 59).

f) Deduções especiais directamente relacionadas com as exportações ou com os resultados das exportações que, no cálculo da matéria colectável dos impostos directos, sejam superiores às concedidas à produção destinada ao consumo interno.

g) Isenção ou remissão, na produção e distribuição de produtos exportados, de um montante de impostos indirectos (ver nota 58) superior ao dos cobrados sobre a produção e a distribuição de produtos similares vendidos para consumo interno.

h) Isenção, remissão ou diferimento de impostos indirectos em cascata (ver nota 58) cobrados em estádios anteriores sobre os bens ou serviços utilizados na produção de produtos exportados, quando os respectivos montantes forem superiores aos montantes objecto de isenção, remissão ou diferimento dos impostos indirectos em cascata cobrados em estádios anteriores sobre bens ou serviços similares utilizados na produção de produtos similares vendidos para consumo interno; contudo, a isenção, a remissão ou o diferimento de impostos indirectos em cascata cobrados em estádios anteriores podem ser concedidos relativamente a produtos exportados, mesmo que não sejam concedidos em relação a produtos similares vendidos para consumo interno, no caso de os impostos indirectos em cascata cobrados em estádios anteriores incidirem sobre inputs consumidos durante o processo de produção dos produtos exportados (com o devido desconto para ter em conta as perdas normalmente registadas) (ver nota 60). Esta disposição deve ser interpretada em conformidade com as directrizes relativas ao consumo de inputs durante o processo de produção que constam do Anexo II.

i) Remissão ou devolução da diferença entre o montante das imposições na importação (ver nota 58) e o montante das imposições sobre os inputs importados consumidos durante o processo de produção dos produtos exportados (com o devido desconto para ter em conta as perdas normalmente registadas); contudo, em casos especiais, uma empresa pode utilizar, como inputs de substituição, inputs do mercado interno em quantidade igual à dos inputs importados da mesma qualidade e com as mesmas características, a fim de beneficiar da presente disposição, no caso de as operações de importação e de as operações de exportação correspondentes serem efectuadas num período razoável não superior a dois anos. Esta disposição deve ser interpretada em conformidade com as directrizes relativas ao consumo de inputs durante o processo de produção, que constam do Anexo II, e com as directrizes para determinar se os sistemas de devolução relativos aos inputs de substituição consumidos durante o processo de produção constituem subvenções às exportações, que constam do Anexo III.

j) Instituição pelos Estados (ou por organismos especiais sob o controlo dos Estados) de sistemas de garantia ou de seguro de crédito à exportação, de sistemas de garantia ou de seguro contra o aumento dos custos dos produtos exportados ou de sistemas contra os riscos cambiais a taxas de prémio manifestamente insuficientes para cobrir a longo prazo as despesas e as perdas ocasionadas pela gestão desses sistemas.

k) Concessão pelos Estados (ou por organismos especiais sob o controlo dos Estados e/ou sob a sua autoridade) de créditos à exportação a taxas inferiores às que têm efectivamente de pagar para obter os fundos utilizados desse modo (ou que deveriam pagar no mercado internacional de capitais por um empréstimo reembolsável nos mesmos prazos, nas mesmas condições de crédito e expresso na mesma moeda do crédito à exportação), ou pagamento, na totalidade ou em parte, de todas as despesas suportadas pelos exportadores ou pelos organismos financeiros para a obtenção de crédito, desde que tais medidas sirvam para assegurar uma vantagem considerável no que se refere às condições do crédito à exportação.

Todavia, no caso de um Membro ser Parte num compromisso internacional em matéria de créditos à exportação que beneficiam de apoio oficial, no qual pelo menos 12 Membros do presente Acordo sejam Partes desde 1 de Janeiro de 1979 (ou num compromisso que o substitua que tenha sido adoptado por esses Membros), ou no caso de um Membro aplicar, na prática, as disposições do referido compromisso em matéria de taxas de juro, uma prática seguida em matéria de créditos à exportação que esteja em conformidade com tais disposições não será considerada uma subvenção às exportações proibida pelo presente Acordo.

l) Qualquer outro encargo para o Tesouro Público que constitua uma subvenção às exportações na acepção do artigo XVI do GATT de 1994.

(nota 57) Pela expressão «condições comerciais» entende-se que existe liberdade de escolha entre os produtos nacionais e os produtos importados e que a referida escolha se baseia exclusivamente em considerações de natureza comercial.

(nota 58) Para efeitos do presente Acordo:

- Por «impostos directos» entende-se os impostos sobre remunerações, lucros, juros, rendas, royalties e quaisquer outras formas de rendimento, bem como sobre a propriedade imobiliária;

- Por «imposições na importação» entende-se os direitos aduaneiros, outros direitos e outras imposições fiscais não enumeradas nesta nota cobrados sobre as importações;

- Por «impostos indirectos» entende-se os impostos sobre vendas, consumos específicos, volume de negócios, valor acrescentado, concessões de franquias, imposto do selo, imposto de transmissão, impostos sobre as existências e o equipamento, ajustamentos fiscais na fronteira, bem como todos os impostos para além dos impostos directos e das imposições na importação;

- Por impostos indirectos «cobrados em estádios anteriores» entende-se os impostos cobrados sobre bens ou serviços utilizados directa ou indirectamente na produção do produto;

- Por impostos indirectos «em cascata» entende-se os impostos que incidem sobre vários estádios quando não existam mecanismos de dedução posterior do imposto, nos casos em que bens ou serviços sujeitos a impostos num estádio da produção sejam utilizados num estádio seguinte da mesma;

- A «remissão» de impostos engloba a restituição e a redução de impostos;

- A «remissão ou devolução» abrange a isenção e o diferimento, na totalidade ou em parte, das imposições na importação.

(nota 59) Os Membros reconhecem que o diferimento não constitui necessariamente uma subvenção às exportações, designadamente nos casos em que são cobrados os juros correspondentes. Os Membros reafirmam o princípio segundo o qual os preços das mercadorias nas transacções entre empresas exportadoras e compradores estrangeiros controlados pelas primeiras ou submetidos a um mesmo controlo deveriam, para fins fiscais, ser os preços que seriam cobrados entre empresas independentes, em condições de livre concorrência. Qualquer Membro pode chamar a atenção de outro Membro para as práticas administrativas ou outras que possam ser contrárias a esse princípio e que se traduzam numa economia significativa de impostos directos nas transacções de exportação. Nessas circunstâncias, os Membros em causa deverão normalmente esforçar-se por solucionar os seus litígios recorrendo aos meios previstos nos tratados bilaterais existentes em matéria fiscal ou a quaisquer outros mecanismos internacionais específicos, sem prejuízo dos direitos e obrigações, incluindo o direito de consulta instituído por força da frase anterior, que decorrem para os Membros em virtude do GATT de 1994.

A alínea a) não tem por objectivo limitar a possibilidade de um Membro tomar medidas com vista a evitar a dupla tributação dos rendimentos de origem estrangeira obtidos pelas suas empresas ou por empresas de outro Membro.

(nota 60) A alínea h) não se aplica aos sistemas de impostos sobre o valor acrescentado nem aos ajustamentos fiscais na fronteira que os substituam; ao problema da remissão excessiva de impostos sobre o valor acrescentado é exclusivamente aplicável o disposto na alínea g).

ANEXO II

DIRECTRIZES RELATIVAS AO CONSUMO DE INPUTS DURANTE O PROCESSO DE PRODUÇÃO (ver nota 61)

1 - Os sistemas de redução dos impostos indirectos podem prever a isenção, a remissão ou o diferimento dos impostos indirectos em cascata cobrados em estádios anteriores sobre inputs consumidos durante o processo de produção de produtos exportados (com o devido desconto para ter em conta as partes normalmente registadas). De igual modo, os sistemas de devolução podem prever a remissão ou a devolução das imposições na importação cobradas sobre inputs consumidos durante o processo de produção de produtos exportados (com o devido desconto para ter em conta as perdas normalmente registadas).

2 - Na Lista Exemplificativa das Subvenções às Exportações, que consta do Anexo I do presente Acordo, alíneas h) e i), é referida a expressão «inputs consumidos durante o processo de produção dos produtos exportados». Nos termos da alínea h), os sistemas de redução dos impostos indirectos podem constituir uma subvenção às exportações quando tiverem por efeito a isenção, remissão ou diferimento de um montante dos impostos indirectos em cascata cobrados em estádios anteriores superior ao montante dos impostos efectivamente cobrados sobre os inputs consumidos durante o processo de produção dos produtos exportados. Nos termos da alínea i), os sistemas de devolução podem constituir uma subvenção às exportações quando tiverem por efeito a remissão ou devolução de um montante das imposições na importação superior ao montante das imposições efectivamente cobradas sobre o inputs consumidos durante o processo de produção dos produtos exportados. Ambas as alíneas prevêem que, nas conclusões relativas ao consumo dos inputs durante o processo de produção dos produtos exportados, deve proceder-se ao devido desconto para ter em conta as perdas normalmente registadas. A alínea i) prevê também o recurso a inputs de substituição, sempre que adequado.

No âmbito de um inquérito em matéria de direitos de compensação realizado em conformidade com o presente Acordo, a fim de analisarem se se está perante um caso de consumo de inputs durante o processo de produção dos produtos exportados, as autoridades responsáveis pela condução do mesmo devem proceder do seguinte modo:

1 - Nos casos em que é alegado que um sistema de redução dos impostos indirectos ou um sistema de devolução comporta uma subvenção em virtude de uma redução ou de uma devolução excessivas dos impostos indirectos ou das imposições na importação cobradas sobre inputs consumidos durante o processo de produção dos produtos exportados, as autoridades responsáveis pelo inquérito devem, em primeiro lugar, determinar se o Membro exportador possui e aplica um sistema ou um procedimento que permita confirmar quais os inputs consumidos durante o processo de produção do produto exportado e respectivas quantidades. Nos casos em que se determinar que é aplicado um sistema ou um procedimento desse tipo, as autoridades responsáveis pelo inquérito devem então examiná-lo para verificar se o mesmo é razoável e adequado aos fins pretendidos e se se baseia em práticas comerciais geralmente aceites no país de exportação. As autoridades responsáveis pelo inquérito podem considerar necessário levar a efeito, nos termos do disposto no n.º 6 do artigo 12.º, alguns controlos práticos destinados a verificar as informações ou a assegurar-se de que o sistema ou o procedimento em questão está a ser adequadamente aplicado.

2 - Nos casos em que não exista um sistema ou um procedimento deste tipo, em que o mesmo não seja razoável ou em que exista e seja considerado razoável mas se verifique que não é aplicado ou que é aplicado de um modo inadequado, o Membro exportador deve proceder a um novo exame com base nos inputs efectivamente utilizados, a fim de determinar se o montante pago foi excessivo. Se as autoridades responsáveis pelo inquérito considerarem necessário, será efectuado um novo exame nos termos do disposto no n.º 1.

3 - As autoridades responsáveis pelo inquérito devem considerar que os inputs foram fisicamente incorporados no caso de terem sido utilizados durante o processo de produção e se encontrarem fisicamente presentes no produto exportado. Os Membros tomam nota de que esses inputs não necessitam de estar presentes no produto final sob a mesma forma com que entraram no processo de produção.

4 - Na determinação da quantidade de um dado input consumido durante o processo de produção do produto exportado, deve «fazer-se o devido desconto para ter em conta as perdas normalmente registadas», devendo essas perdas ser consideradas como tendo ocorrido durante o processo de produção do produto exportado. O termo «perdas» diz respeito à parte de um determinado input que não tem uma função independente no processo de produção, nem é consumida no processo de produção do produto exportado (nomeadamente, por razões de ineficiência), não podendo além disso ser recuperada, utilizada ou vendida pelo mesmo fabricante.

5 - Para determinar se o ajustamento relativo às perdas reclamado é «o devido», as autoridades responsáveis pelo inquérito devem tomar em consideração o processo de produção, a prática habitual do ramo de produção do país de exportação e, se necessário, outros factores de ordem técnica. As autoridades responsáveis pelo inquérito devem ter em conta que é importante determinar se as autoridades do Membro exportador calcularam de modo razoável o montante das perdas, no caso de se pretender incluí-lo no montante da redução ou da remissão de um imposto ou direito.

(nota 61) Os inputs consumidos no processo de produção abrangem os inputs fisicamente incorporados, a energia e os combustíveis e carburantes utilizados no processo de produção, bem como os catalizadores consumidos no decurso da sua utilização com vista à obtenção do produto exportado.

ANEXO III

DIRECTRIZES PARA DETERMINAR SE SISTEMAS DE DEVOLUÇÃO RELATIVOS A INPUTS DE SUBSTITUIÇÃO CONSTITUEM SUBVENÇÕES ÀS EXPORTAÇÕES.

Os sistemas de devolução podem prever o reembolso ou a devolução das imposições na importação cobradas sobre inputs consumidos durante o processo de produção de outro produto, quando este último é exportado contendo inputs nacionais da mesma qualidade e com as mesmas características das dos inputs importados que substituem. Em conformidade com o disposto na alínea i) da Lista Exemplificativa das Subvenções às Exportações, que consta do Anexo I, os sistemas de devolução aplicados aos inputs de substituição podem constituir uma subvenção às exportações quando permitam devolver montantes superiores aos das imposições na importação cobradas inicialmente sobre os inputs importados em relação aos quais é solicitada uma devolução.

No âmbito de um inquérito em matéria de direitos de compensação, realizado em conformidade com o presente Acordo, a fim de analisarem um sistema de devolução relativo a inputs de substituição, as autoridades responsáveis pela condução do mesmo devem proceder do seguinte modo:

1 - A alínea i) da Lista Exemplificativa prevê que inputs do mercado interno possam substituir inputs importados na produção de um produto destinado à exportação, desde que esses inputs sejam em quantidade igual e com qualidades e características idênticas às dos inputs importados substituídos. É importante que exista um sistema ou um procedimento de verificação, dado que tal permite ao Governo do Membro exportador assegurar e demonstrar que a quantidade de inputs em relação aos quais é solicitada uma devolução não excede a quantidade de produtos similares exportados, independentemente da forma que assumam, e que o montante das imposições na importação objecto de devolução não ultrapassa o montante cobrado inicialmente sobre os inputs importados em questão.

2 - Nos casos em que é alegado que um sistema de devolução relativo a inputs de substituição comporta uma subvenção, as autoridades responsáveis pelo inquérito devem, em primeiro lugar, determinar se o Governo do Membro exportador possui e aplica um sistema ou um procedimento de verificação. Nos casos em que se determinar que é aplicado tal sistema ou procedimento, as autoridades responsáveis pelo inquérito devem então examinar os processos de verificação para determinar se são razoáveis, adequados à finalidade pretendida e se se baseiam em práticas comerciais geralmente aceites no país de exportação. Caso se determine que os processos em causa satisfazem esses critérios e são aplicados de modo eficaz, não se deve presumir que se está perante um caso de subvenção. As autoridades responsáveis pelo inquérito podem considerar necessário levar a efeito, em conformidade com o disposto no n.º 6 do artigo 12.º, alguns controlos práticos destinados a verificar as informações ou a assegurar-se de que os processos de verificação estão a ser eficazmente aplicados.

3 - Nos casos em que não existam processos de verificação, em que os mesmos não sejam razoáveis, ou em que existam e sejam considerados razoáveis mas em que se verifique que os mesmos não são aplicados ou são aplicados de um modo inadequado, pode estar-se perante um caso de subvenção. Nesses casos, o Membro exportador deve proceder a um novo exame com base nas transacções em causa efectivamente realizadas, a fim de determinar se o montante pago foi excessivo. Se as autoridades responsáveis pelo inquérito considerarem necessário, será efectuado um novo exame em conformidade com o disposto no n.º 2.

4 - O facto de um regime de devolução relativo a inputs de substituição conter uma disposição que autoriza os exportadores a seleccionarem as remessas importadas em relação às quais solicitam uma devolução não deve, por si só, ser considerado um caso de subvenção.

5 - Considerar-se-á que existe uma devolução excessiva das imposições na importação, na acepção da alínea i), se um Estado tiver pago juros relativos aos montantes restituídos ao abrigo do sistema de devolução, considerando-se que o montante em excesso é o montante dos juros efectivamente pagos ou a pagar.

ANEXO IV

CÁLCULO DO TOTAL DAS SUBVENÇÕES AD VALOREM [N.º 1, ALÍNEA A), DO ARTIGO 6.º] (ver nota 62)

1 - O cálculo do montante de uma subvenção, para efeitos da aplicação do disposto no n.º 1, alínea a), do artigo 6.º, deve ser efectuado com base no respectivo custo para o Estado que a concede.

2 - Com excepção dos casos previstos nos n.os 3 a 5, para determinar se a taxa global das subvenções é superior a 5% do valor do produto, este será calculado como o valor total das vendas da empresa beneficiária (ver nota 63) no período de 12 meses mais recente que precede o período em que é concedida uma subvenção e relativamente ao qual existam dados disponíveis sobre as vendas (ver nota 64).

3 - No caso de a concessão de uma subvenção estar associada à produção ou à venda de um determinado produto, o valor do produto será calculado como o valor total das vendas desse produto pela empresa beneficiária no período de 12 meses mais recente que precede o período em que é concedida a subvenção e relativamente ao qual existam dados disponíveis.

4 - No caso de a empresa beneficiária se encontrar numa situação de arranque, considerar-se-á que existe um prejuízo grave se a taxa total das subvenções for superior a 15% do montante total dos fundos investidos. Para efeitos da aplicação do presente número, o período de arranque não pode exceder o primeiro ano de produção (ver nota 65).

5 - No caso de a empresa beneficiária estar localizada num país de economia inflacionista, o valor do produto deve ser calculado como o valor total das vendas da empresa beneficiária (ou das vendas do produto em questão, se se tratar de uma subvenção condicional), durante o ano civil precedente, indexado à taxa de inflação registada durante o período de 12 meses que precede o mês em que deve ser concedida a subvenção.

6 - Para determinar a taxa global das subvenções durante um determinado ano, somar-se-ão as subvenções concedidas no âmbito de diferentes programas e por diferentes autoridades no território de um Membro.

7 - As subvenções concedidas antes da entrada em vigor do Acordo OMC que beneficiarão a futura produção serão incluídas na taxa global das subvenções.

8 - As subvenções não passíveis de recurso em conformidade com as disposições pertinentes do presente Acordo não devem ser incluídas no cálculo do montante de uma subvenção para efeitos do disposto no n.º 1, alínea a), do artigo 6.º

(nota 62) Deverá ser estabelecido, na medida do necessário, um memorando de entendimento entre os Membros sobre as questões não especificadas no presente anexo ou relativamente às quais seja necessário fornecer explicações adicionais para efeitos da aplicação do n.º 1, alínea a), do artigo 6.º

(nota 63) A empresa beneficiária é uma empresa do território do Membro que concede a subvenção.

(nota 64) No caso de subvenções de natureza fiscal, o valor do produto deve ser calculado como sendo o valor total das vendas da empresa beneficiária durante o exercício em que a empresa em questão beneficiou dessa subvenção.

(65) Uma situação de arranque abrange os casos em que foram assumidos compromissos financeiros para o desenvolvimento de um produto ou para a construção de infra-estruturas de fabrico de produtos que beneficiam da subvenção, ainda que a produção não tenha começado.

ANEXO V

PROCEDIMENTOS A ADOPTAR PARA A RECOLHA DE INFORMAÇÕES EM MATÉRIA DE PREJUÍZO GRAVE

1 - Todos os Membros devem colaborar na recolha de elementos de prova que serão examinados por um painel de acordo com os procedimentos previstos nos n.os 4 a 6 do artigo 7.º As partes em litígio e qualquer país terceiro Membro interessado devem notificar o ORL, logo que as disposições do n.º 4 do artigo 7.º tenham sido invocadas, do nome da organização responsável pela aplicação da presente disposição no seu território e dos procedimentos a adoptar para dar seguimento aos pedidos de informação.

2 - Nos casos em que sejam submetidas questões à apreciação do ORL, nos termos do disposto no n.º 4 do artigo 7.º, o ORL, caso tal lhe seja solicitado, deve dar início ao procedimento para obter do Governo do Membro que concede a subvenção em questão as informações necessárias para determinar a existência e o montante da subvenção, o valor das vendas totais das empresas subvencionadas, bem como as informações necessárias para analisar os efeitos desfavoráveis causados pelo produto subvencionado (ver nota 66). Este processo pode abranger, sempre que tal se afigurar adequado, a formulação de perguntas ao Governo do Membro que concede a subvenção e do Membro queixoso tendo em vista a obtenção de informações, bem como dados mais pormenorizados sobre as informações a que as partes em litígio tenham acesso através dos procedimentos de notificação previstos na parte VII (ver nota 67).

3 - Caso se verifiquem efeitos em mercados de países terceiros, uma parte em litígio pode recolher informações, inclusivamente através de questões colocadas ao Governo do país terceiro Membro, que se revelam necessárias para avaliar os efeitos desfavoráveis e que, de outro modo, não possam ser razoavelmente obtidas junto do Membro queixoso ou do Membro que concede a subvenção. Este requisito não deve implicar um encargo desproporcionado para o país terceiro Membro. Em especial, este último não deve ter de proceder a uma análise do mercado ou dos preços expressamente para esse efeito. As informações a prestar devem ser as informações disponíveis ou de fácil obtenção pelo Membro em causa (tal como, por exemplo, dados estatísticos que tenham sido coligidos recentemente pelos serviços de estatística competentes, mas que não tenham sido ainda publicados; dados aduaneiros relativos às importações e aos valores declarados dos produtos em questão, etc.). Contudo, se uma parte em litígio proceder a uma análise pormenorizada do mercado a suas próprias expensas, a tarefa da pessoa ou da empresa encarregue dessa análise deve ser facilitada pelas autoridades do país terceiro Membro, devendo a pessoa ou a empresa em causa ter acesso a todas as informações que habitualmente não são consideradas confidenciais pelo Governo.

4 - O ORL nomeará um representante encarregue de facilitar o processo de recolha de informações. Esse representante terá por única função assegurar a recolha atempada das informações necessárias para que o posterior exame multilateral do litígio seja efectuado rapidamente. Designadamente, o referido representante poderá sugerir formas mais eficazes de solicitar as informações necessárias e incentivar a colaboração entre as partes.

5 - O processo de recolha de informações exposto nos n.os 2 a 4 deve ser concluído no prazo de 60 dias a contar da data de apresentação da questão ao ORL, em conformidade com o n.º 4 do artigo 7.º As informações obtidas durante esse processo serão comunicadas a um painel criado pelo ORL em conformidade com o disposto na parte X. Das referidas informações, devem constar, nomeadamente, dados relativos ao montante da subvenção em questão (e, nos casos em que tal se afigurar adequado, ao valor das vendas totais das empresas subvencionadas), aos preços do produto subvencionado, aos preços do produto não subvencionado, aos preços praticados por outros fornecedores do mercado e às mudanças registadas a nível da oferta do produto subvencionado no mercado em questão e a nível das partes de mercado. Devem abranger igualmente os elementos de prova contrários, bem como quaisquer informações complementares que o painel considere pertinentes para chegar às suas conclusões.

6 - Se o Membro que concede a subvenção e/ou o país terceiro Membro não colaborarem no processo de recolha de informações, o Membro queixoso apresentará a sua alegação de existência de um prejuízo grave com base nos elementos de prova de que disponha, juntamente com os factos e circunstâncias que demonstram a falta de colaboração por parte do Membro que concede a subvenção e/ou do país terceiro Membro. No caso de não existirem informações disponíveis, devido à falta de colaboração por parte do Membro que concede a subvenção e/ou do país terceiro Membro, o painel pode completar o processo, na medida do necessário, com base nas melhores informações susceptíveis de ser obtidas por outros meios.

7 - Na elaboração das suas determinações, o painel deve interpretar desfavoravelmente a falta de colaboração de qualquer das partes envolvidas no processo de recolha de informações.

8 - Para determinar se deve basear-se nas melhores informações disponíveis ou em interpretações desfavoráveis, o painel deve ter em consideração o parecer do representante do ORL, nomeado nos termos do n.º 4, quanto à pertinência dos pedidos de informação e aos esforços de colaboração envidados pelas partes, respondendo atempadamente a tais pedidos.

9 - No processo de recolha de informações, nada limitará a capacidade de o painel procurar obter informações adicionais que considere essenciais para a resolução mais adequada dos litígios em causa, e que não tenham sido solicitadas ou coligidas durante esse processo. Todavia, em princípio, o painel não deve solicitar informações adicionais para completar o processo nos casos em que as informações venham reforçar a posição de uma determinada parte e em que a ausência de tais informações resulte da falta de colaboração dessa parte no processo de recolha de informações.

(nota 67) No âmbito do processo de recolha de informações, o ORL deve ter em conta a necessidade de proteger as informações de carácter confidencial ou que são comunicadas a título confidencial por qualquer dos Membros envolvidos no processo.

ANEXO VI

PROCEDIMENTOS A ADOPTAR NOS INQUÉRITOS NO LOCAL REALIZADOS EM CONFORMIDADE COM O N.º 6 DO ARTIGO 12.º

1 - Aquando do início de um inquérito, as autoridades do Membro exportador e as empresas conhecidas como interessadas devem ser informadas da intenção de se proceder a inquéritos no local.

2 - Se, em circunstâncias excepcionais, se pretender incluir peritos não governamentais na equipa encarregue da realização do inquérito, as empresas e as autoridades do Membro exportador devem ser informadas desse facto. Tais peritos não governamentais devem estar sujeitos a sanções efectivas caso não respeitem o carácter confidencial das informações.

3 - A prática habitual deverá ser a de obter o acordo expresso das empresas em causa do Membro exportador antes da fixação da data da visita.

4 - Assim que o acordo das empresas em causa tiver sido obtido, as autoridades responsáveis pelo inquérito devem notificar as autoridades do Membro exportador dos nomes e endereços das empresas a visitar e das datas acordadas.

5 - As empresas em questão devem ser notificadas da visita com antecedência suficiente.

6 - As visitas destinadas a explicar o questionário só devem ser feitas a pedido de uma empresa exportadora. Nesse caso, as autoridades responsáveis pelo inquérito podem colocar-se à disposição da empresa. Tal visita só pode ser efectuada nas seguintes condições: a) as autoridades do Membro importador devem notificar os representantes do Governo do Membro em questão; e b) este último não deve levantar objecções à visita.

7 - Dado que o seu principal objectivo é verificar as informações prestadas ou completá-las, o inquérito no local deve ser realizado após a recepção da resposta ao questionário, excepto se a empresa tiver concordado com o contrário e o Governo do Membro exportador tiver sido informado pelas autoridades responsáveis pelo inquérito da visita antecipada e não tiver levantado quaisquer objecções. Além disso, a prática habitual deve ser a de, antes da realização da visita, comunicar às empresas em causa o carácter geral das informações a verificar, bem como quaisquer outras informações que devam ser prestadas, embora tal não deva impedir que no próprio local sejam solicitadas informações mais pormenorizadas, com base nas já obtidas.

8 - Sempre que possível, seria conveniente que os pedidos de esclarecimento formulados pelas autoridades ou pelas empresas dos Membros exportadores, essenciais para o êxito de um inquérito no local, fossem satisfeitos antes da realização da visita.

ANEXO VII

PAÍSES EM DESENVOLVIMENTO MEMBROS REFERIDOS NO N.º 2, ALÍNEA A), DO ARTIGO 27.º

Os países em desenvolvimento Membros que não estão sujeitos às disposições do n.º 1, alínea a), do artigo 3.º, nos termos do disposto no n.º 2, alínea a), do artigo 27.º são os seguintes:

a) Os países menos avançados designados como tal pela Organização das Nações Unidas, que sejam Membros da OMC;

b) Cada um dos seguintes países em desenvolvimento Membros da OMC estará sujeito às disposições aplicáveis aos restantes países em desenvolvimento Membros, em conformidade com o disposto no n.º 2, alínea b), do artigo 27.º, quando o respectivo PNB per capita tiver atingido 1000 dólares por ano (ver nota 68): Bolívia, Camarões, Congo, Costa do Marfim, Egipto, Filipinas, Gana, Guatemala, Guiana, Índia, Indonésia, Marrocos, Nicarágua, Nigéria, Paquistão, Quénia, República Dominicana, Senegal, Sri Lanka e Zimbabué.

(nota 68) A inclusão dos países em desenvolvimento Membros na lista que consta da alínea b) baseia-se nos dados mais recentes do Banco Mundial relativos ao PNB per capita.

ACORDO SOBRE AS MEDIDAS DE SALVAGUARDA

Os Membros:

Considerando o objectivo geral dos Membros de melhorar e reforçar o sistema de comércio internacional baseado no GATT de 1994;

Reconhecendo a necessidade de esclarecer e reforçar as disciplinas do GATT de 1994 e, em especial, as do seu artigo XIX (medidas de urgência respeitantes à importação de determinados produtos), de restabelecer um controlo multilateral das medidas de salvaguarda e de eliminar as medidas que escapam a tal controlo;

Reconhecendo a importância do ajustamento estrutural e a necessidade de aumentar, mais do que de limitar, a concorrência nos mercados internacionais;

Reconhecendo, além disso, que, para o efeito, é necessário um acordo global sobre as medidas de salvaguarda, aplicável a todos os Membros e baseado nos princípios de base do GATT de 1994;

acordam no seguinte:

Artigo 1.º

Disposições gerais

O presente Acordo estabelece regras para a aplicação de medidas de salvaguarda, que devem ser entendidas como as medidas previstas no artigo XIX do GATT de 1994.

Artigo 2.º

Condições

1 - Um Membro (ver nota 1) poderá aplicar uma medida de salvaguarda em relação a um produto unicamente se tiver determinado, em conformidade com as disposições a seguir enunciadas, que esse produto é importado no seu território em quantidades de tal modo elevadas, em termos absolutos ou em relação à produção nacional, e em tais condições que cause ou ameace causar um prejuízo grave ao ramo de produção nacional de produtos similares ou directamente concorrentes.

2 - As medidas de salvaguarda serão aplicadas a um produto importado independentemente da sua proveniência.

(nota 1) Uma união aduaneira poderá aplicar uma medida de salvaguarda enquanto entidade única ou em nome de um Estado membro. Quando uma união aduaneira aplicar uma medida de salvaguarda enquanto entidade, todos os requisitos para a determinação da existência de um prejuízo grave ou de uma ameaça de prejuízo grave a título do presente Acordo deverão basear-se nas condições existentes no conjunto da união aduaneira. Quando uma medida de salvaguarda for aplicada em nome de um Estado membro, todos os requisitos para a determinação da existência de um grave prejuízo ou de uma ameaça de prejuízo grave deverão basear-se nas condições existentes nesse Estado membro e a medida limitar-se a esse Estado membro. Nenhuma disposição do presente Acordo prejudica a interpretação da relação entre o artigo XIX e o n.º 8 do artigo XXIV do GATT de 1994.

Artigo 3.º

Inquérito

1 - Um Membro poderá aplicar uma medida de salvaguarda unicamente na sequência de um inquérito realizado pelas autoridades competentes desse Membro de acordo com procedimentos previamente estabelecidos e tornados públicos em conformidade com o disposto no artigo X do GATT de 1994. Este inquérito incluirá a publicação de um aviso destinado a informar razoavelmente todas as partes interessadas, bem como audições públicas ou outros meios adequados através dos quais os importadores, os exportadores e as outras partes interessadas tenham a possibilidade de apresentar elementos de prova e os seus comentários, e inclusive de responder aos comentários de outras partes e de dar a conhecer os seus pontos de vista, nomeadamente quanto à questão de saber se a aplicação de uma medida de salvaguarda seria, ou não, do interesse geral. As autoridades competentes publicarão um relatório do qual constarão as suas verificações, bem como as conclusões fundamentadas a que chegaram sobre todas as questões de facto e de direito pertinentes.

2 - Todas as informações de natureza confidencial ou fornecidas a título confidencial serão, uma vez demonstrada a razão dessa confidencialidade, tratadas como tal pelas autoridades competentes. Tais informações não serão divulgadas sem a autorização da parte que as tenha fornecido. Poder-se-á solicitar às partes que forneceram informações confidenciais que apresentem um resumo não confidencial das mesmas ou, se as referidas partes indicarem que tais informações não podem ser resumidas, que exponham os motivos pelos quais não é possível apresentar um resumo. Contudo, se as autoridades competentes considerarem injustificado um pedido de tratamento confidencial e se a parte em causa não estiver disposta a tornar públicas as informações ou a autorizar a sua divulgação em termos gerais ou sob a forma de resumo, poderão não ter em conta tais informações, a menos que lhes possa ser apresentada prova suficiente, por parte de fontes adequadas, de que as informações são correctas.

Artigo 4.º

Determinação de prejuízo grave ou de ameaça de prejuízo

1 - Para efeitos do presente Acordo:

a) Por «prejuízo grave» entende-se uma degradação geral considerável da situação de um ramo de produção nacional;

b) Por «ameaça de prejuízo grave» entende-se que está claramente iminente prejuízo grave, em conformidade com o n.º 2. A determinação da existência de uma ameaça de prejuízo grave basear-se-á em factos, e não unicamente em alegações, conjecturas ou possibilidades remotas;

c) Aquando da determinação da existência de um prejuízo ou de uma ameaça de prejuízo, por «ramo de produção nacional» entende-se o conjunto dos produtores de produtos similares ou directamente concorrentes em actividade no território de um Membro, ou aqueles cuja produção cumulada de produtos similares ou directamente concorrentes constituem uma proporção importante da produção na-cional total desses produtos.

2 - a) No decurso do inquérito para determinar se um aumento das importações causou ou ameaça causar um prejuízo grave a um ramo de produção nacional em conformidade com as disposições do presente Acordo, as autoridades competentes avaliarão todos os factores pertinentes de natureza objectiva e quantificável que influenciam a situação desse ramo, em especial o ritmo de crescimento das importações do produto considerado e o seu aumento em volume, em termos absolutos e relativos, a parte do mercado interno adquirida pelo aumento das importações, as variações do nível das vendas, a produção, a produtividade, a utilização da capacidade instalada, os lucros, as perdas e o emprego.

b) A determinação referida na alínea a) só será efectuada se o inquérito demonstrar, com base em elementos de prova objectivos, a existência de uma relação de causalidade entre o aumento das importações do produto em questão e o prejuízo grave ou ameaça de prejuízo grave. Quando outros factores que não o aumento das importações causem simultaneamente um prejuízo ao ramo de produção nacional, esse prejuízo não será imputado ao aumento das importações.

c) As autoridades competentes publicarão no mais curto prazo de tempo, em conformidade com o disposto no artigo 3.º, uma análise pormenorizada da questão objecto do inquérito, bem como uma justificação da pertinência dos factores examinados.

Artigo 5.º

Aplicação de medidas de salvaguarda

1 - Um Membro aplicará medidas de salvaguarda unicamente na medida do necessário para prevenir ou reparar um prejuízo grave e facilitar o ajustamento. Caso se recorra a uma restrição quantitativa, essa medida não reduzirá as quantidades importadas para um nível inferior ao registado num período recente, que corresponderá à média das importações efectuadas durante os últimos três anos representativos relativamente aos quais existam estatísticas disponíveis, a menos que seja claramente demonstrada a necessidade de um nível diferente para prevenir ou reparar um prejuízo grave. Os Membros deverão escolher as medidas mais adequadas para a realização destes objectivos.

2 - a) Nos casos em que um contingente seja repartido entre países fornecedores, o Membro que aplica as restrições pode procurar chegar a acordo, relativamente à repartição das partes do contingente, com todos os outros Membros que tenham um interesse considerável no fornecimento do produto em questão. Nos casos em que esse método não seja razoavelmente exequível, o Membro em causa atribuirá aos Membros que tenham um interesse considerável no fornecimento do produto partes calculadas com base nas percentagens, fornecidas por esses Membros durante um período representativo anterior, da quantidade ou do valor totais das importações do produto, tomando devidamente em conta qualquer factor especial que possa ter afectado ou vir a afectar o comércio do produto.

b) Um Membro pode obter uma derrogação às disposições da alínea a) na condição de serem realizadas, sob os auspícios do Comité das Medidas de Salvaguarda previsto no n.º 1 do artigo 13.º, as consultas previstas no n.º 3 do artigo 12.º e de que seja claramente demonstrado ao Comité que: i) as importações provenientes de certos Membros aumentaram numa percentagem desproporcionada relativamente ao aumento total das importações do produto em questão durante o período representativo; ii) são justificadas as razões pelas quais se procede à derrogação às disposições da alínea a); iii) as condições dessa derrogação são equitativas para todos os fornecedores do produto considerado. A vigência de qualquer medida deste tipo não será prorrogada para além do período inicial previsto no n.º 1 do artigo 7.º A derrogação acima mencionada não será autorizada no caso de ameaça de prejuízo grave.

Artigo 6.º

Medidas de salvaguarda provisórias

Em circunstâncias críticas em que um atraso causaria um prejuízo difícil de reparar, um Membro pode adoptar uma medida de salvaguarda provisória após uma determinação preliminar da existência de provas manifestas de que o aumento das importações causou ou ameaça causar um prejuízo grave. A vigência da medida provisória não ultrapassará 200 dias, período durante o qual serão satisfeitos os requisitos pertinentes previstos nos artigos 2.º a 7.º e 12.º Tais medidas deveriam assumir a forma de um aumento dos direitos aduaneiros, a restituir no mais curto prazo de tempo caso não seja determinado, no âmbito do inquérito posterior, referido no n.º 2 do artigo 4.º, que o aumento das importações causou ou ameaçou causar um prejuízo grave a um ramo da produção nacional. A vigência dessas medidas provisórias incluirá a parte do período inicial e qualquer prorrogação referida nos n.os 1, 2 e 3 do artigo 7.º

Artigo 7.º

Vigência e exame das medidas de salvaguarda

1 - Um Membro aplicará medidas de salvaguarda unicamente durante o período necessário para prevenir ou reparar um prejuízo grave e para facilitar o ajustamento. Esse período não ultrapassará quatro anos, a menos que seja prorrogado em conformidade com o disposto no n.º 2.

2 - O período referido no n.º 1 poderá ser prorrogado, na condição de as autoridades competentes do Membro importador terem determinado, em conformidade com os procedimentos referidos nos artigos 2.º, 3.º, 4.º e 5.º, que a medida de salvaguarda continua a ser necessária para prevenir ou reparar um prejuízo grave, que existam elementos de prova de que o ramo de produção procede a ajustamentos e na condição de serem observadas as disposições pertinentes dos artigos 8.º e 12.º

3 - O período total de aplicação de uma medida de salvaguarda, incluindo o período de aplicação de qualquer medida provisória, o período de aplicação inicial e qualquer eventual prorrogação, não ultrapassará oito anos.

4 - A fim de facilitar o ajustamento numa situação em que a vigência prevista de uma medida de salvaguarda, tal como notificada em conformidade com o disposto no n.º 1 do artigo 12.º, ultrapasse um ano, o Membro que aplica a medida liberalizá-la-á progressivamente, a intervalos regulares, durante o período de aplicação. Caso a vigência da medida ultrapasse três anos, o Membro que aplica a medida examinará a situação o mais tardar a meio do respectivo período de aplicação e, se for caso disso, revogá-la-á ou acelerará o ritmo da liberalização. Uma medida cuja vigência seja prorrogada em conformidade com o disposto no n.º 2 não será mais restritiva do que no final do período inicial e deverá continuar a ser liberalizada.

5 - Nenhuma medida de salvaguarda será de novo aplicada à importação de um produto que tenha sido objecto de tal medida, adoptada após a data da entrada em vigor do Acordo OMC, durante um período igual àquele em que essa medida tenha sido anteriormente aplicada, na condição de o período de não aplicação ser de, pelo menos, dois anos.

6 - Não obstante o disposto no n.º 5, pode ser de novo aplicada uma medida de salvaguarda, com uma vigência de, no máximo, 180 dias, à importação de um produto:

a) Se tiver decorrido pelo menos um ano desde a data da introdução de uma medida de salvaguarda aplicada à importação desse produto; e

b) Se tal medida de salvaguarda não tiver sido aplicada ao mesmo produto mais do que duas vezes no decurso do período de cinco anos imediatamente anterior à data de introdução da medida.

Artigo 8.º

Nível de concessões e de outras obrigações

1 - Um Membro que tencione aplicar uma medida de salvaguarda, ou que procure prorrogá-la, esforçar-se-á por manter um nível de concessões e de outras obrigações substancialmente equivalente ao existente no âmbito do GATT de 1994 entre si e os Membros exportadores que seriam afectados por essa medida, em conformidade com o disposto no n.º 3 do artigo 12.º Para atingir este objectivo, os Membros em causa poderão chegar a acordo quanto aos meios adequados de compensação comercial para ter em conta os efeitos desfavoráveis da medida nas suas trocas comerciais.

2 - Caso não se chegue a acordo num prazo de 30 dias no âmbito das consultas realizadas em conformidade com o n.º 3 do artigo 12.º, os Membros exportadores afectados poderão suspender, no prazo de 90 dias a contar da aplicação dessa medida e uma vez caducado um prazo de 30 dias a contar da recepção pelo Conselho do Comércio de Mercadorias de um aviso escrito dessa suspensão, a aplicação de concessões ou de outras obrigações substancialmente equivalentes decorrentes do GATT de 1994 ao comércio do Membro que aplica a medida de salvaguarda, não dando esta suspensão origem a qualquer objecção por parte do Conselho do Comércio de Mercadorias.

3 - O direito de suspensão referido no n.º 2 não será exercido durante os primeiros três anos de aplicação de uma medida de salvaguarda, na condição de essa medida de salvaguarda de ter sido adoptada em consequência de um aumento das importações em termos absolutos e de ser conforme às disposições do presente Acordo.

Artigo 9.º

Países em desenvolvimento Membros

1 - Não serão aplicadas medidas de salvaguarda relativamente a um produto originário de um país em desenvolvimento Membro enquanto a sua parte nas importações do produto considerado do Membro importador não ultrapassar 3%, na condição de os países em desenvolvimento Membros cuja parte nas importações seja inferior a 3% não representarem colectivamente mais de 9% do total de importações do produto considerado (ver nota 2).

2 - Um país em desenvolvimento Membro terá o direito de prorrogar o período de aplicação de uma medida de salvaguarda por um período máximo de dois anos, para além do prazo máximo previsto no n.º 3 do artigo 7.º Não obstante o disposto no n.º 5 do artigo 7.º, um país em desenvolvimento Membro terá o direito de aplicar novamente uma medida de salvaguarda à importação de um produto que tenha sido objecto de tal medida, adoptada após a data da entrada em vigor do Acordo OMC, após um período igual a metade daquele durante o qual essa medida tenha sido anteriormente aplicada, na condição de o período de não aplicação ser de, pelo menos, dois anos.

(nota 2) Um Membro notificará imediatamente ao Comité das Medidas de Salvaguarda qualquer medida adoptada ao abrigo do n.º 1 do artigo 9.º

Artigo 10.º

Medidas preexistentes adoptadas ao abrigo do artigo XIX

Os Membros porão termo a todas as medidas de salvaguarda adoptadas ao abrigo do artigo XIX do GATT de 1947, aplicadas à data da entrada em vigor do Acordo OMC, o mais tardar oito anos a contar da data em que foram aplicadas pela primeira vez ou cinco anos após a data da entrada em vigor do Acordo OMC, caso tal ocorra posteriormente.

Artigo 11.º

Proibição e eliminação de certas medidas

1 - a) Um Membro não adoptará nem procurará adoptar medidas de emergência relativamente à importação de determinados produtos, tal como definidas no artigo XIX do GATT de 1994, a menos que essas medida sejam conformes às disposições desse artigo e aplicadas em conformidade com as disposições do presente Acordo.

b) Além disso, um Membro não procurará adoptar, não adoptará nem manterá medidas de limitação voluntária das exportações, acordos de comercialização ordenada ou outras medidas similares no que respeita à exportação ou à importação (ver nota 3) (ver nota 4). Entre estas medidas estão incluídas as medidas adoptadas por um único Membro, bem como as decorrentes de acordos, convénios e memorandos de entendimento, assinados por dois ou mais Membros. Qualquer medida deste tipo aplicada à data da entrada em vigor do Acordo OMC de-verá ser tornada conforme ao presente Acordo ou progressi-vamente eliminada, em conformidade com o disposto no n.º 2.

c) O presente Acordo não é aplicável às medidas que um Membro procure adoptar, adopte ou aplique por força das disposições do GATT de 1994, que não o artigo XIX, e dos acordos comerciais multilaterais que constam do Anexo 1 A, que não o presente Acordo, ou por força de protocolos, acordos ou convénios concluídos no âmbito do GATT de 1994.

2 - A eliminação progressiva das medidas referidas na alínea b) do n.º 1 será efectuada em conformidade com calendários que os Membros em causa apresentarão ao Comité das Medidas de Salvaguarda, o mais tardar 180 dias após a data da entrada em vigor do Acordo OMC. Esses calendários preverão a eliminação progressiva de todas as medidas referidas no n.º 1 ou a sua adaptação de modo a que figurem conformes ao presente Acordo, num prazo não superior a quatro anos a contar da data da entrada em vigor do Acordo OMC, à excepção de, no máximo, uma medida específica por Membro importador (ver nota 5), cuja vigência não ultrapassará 31 de Dezembro de 1999. Qualquer excepção deste tipo deve ser mutuamente acordada entre os Membros directamente em questão e notificada ao Comité das Medidas de Salvaguarda para exame e aceitação num prazo de 90 dias a contar da entrada em vigor do Acordo OMC. O Anexo do presente Acordo refere uma medida que se acordou ser abrangida por esta excepção.

3 - Os Membros não encorajarão nem apoiarão a adopção ou a manutenção, por empresas públicas ou privadas, de medidas não governamentais equivalentes às referidas no n.º 1.

(nota 3) Um contingente de importação aplicado enquanto medida de salvaguarda em conformidade com as disposições pertinentes do GATT de 1994 e do presente Acordo pode, por mútuo acordo, ser administrado pelo Membro exportador.

(nota 4) Constituem exemplos de medidas similares a moderação das exportações, os sistemas de controlo dos preços de exportação ou de importação, o controlo das exportações ou das importações, os cartéis de importação obrigatórios e os regimes discricionários de licenças de exportação ou de importação que assegurem uma protecção.

(nota 5) A única excepção deste tipo a que as Comunidades Europeias têm direito é indicada no anexo do presente Acordo.

Artigo 12.º

Notificação e consultas

1 - Um Membro notificará imediatamente ao Comité das Medidas de Salvaguarda:

a) O início de um processo de inquérito relativo à existência de um prejuízo grave ou de uma ameaça de prejuízo grave e os motivos da sua realização;

b) A verificação da existência de um prejuízo grave ou de uma ameaça de prejuízo grave causada por um aumento das importações; e

c) A decisão de aplicar ou de prorrogar uma medida de salvaguarda.

2 - Ao efectuar as notificações referidas nas alíneas b) e c) do n.º 1, o Membro que tencione aplicar ou prorrogar uma medida de salvaguarda comunicará ao Comité das Medidas de Salvaguarda todas as informações pertinentes, que incluirão os elementos de prova da existência de um prejuízo grave ou de uma ameaça de prejuízo grave causada por um aumento das importações, a designação precisa do produto em causa e a descrição da medida prevista, a data prevista para a introdução da medida, a sua vigência provável e o calendário para a sua progressiva liberalização. Caso se trate da prorrogação de uma medida, serão igualmente fornecidas provas de que o ramo de produção em causa está a proceder a ajustamentos. O Conselho do Comércio de Mercadorias ou o Comité das Medidas de Salvaguarda pode solicitar ao Membro que tencione aplicar ou prorrogar a medida as informações adicionais que considere necessárias.

3 - Um Membro que tencione aplicar ou prorrogar uma medida de salvaguarda deve proporcionar a oportunidade para a realização de consultas prévias com os Membros que tenham um interesse substancial enquanto exportadores do produto em questão, a fim de, nomeadamente, examinar as informações comunicadas por força do n.º 2, trocar pontos de vista relativamente à medida e chegar a acordo quanto aos meios para atingir o objectivo enunciado no n.º 1 do artigo 8.º

4 - Antes de adoptar uma medida de salvaguarda provisória referida no artigo 6.º, um Membro notificá-la-á ao Comité das Medidas de Salvaguarda. As consultas terão início imediatamente após a adopção da medida.

5 - Os resultados das consultas referidas no presente artigo, bem como os resultados dos exames intercalares referidos no n.º 4 do artigo 7.º, qualquer forma de compensação referida no n.º 1 do artigo 8.º e as suspensões previstas de concessões e de outras obrigações referidas no n.º 2 do artigo 8.º serão imediatamente notificados ao Conselho do Comércio de Mercadorias pelos Membros em causa.

6 - Os Membros notificarão no mais curto prazo de tempo ao Comité das Medidas de Salvaguarda as suas disposições legislativas, regulamentares e administrativas relativas às medidas de salvaguarda, bem como todas as alterações nelas introduzidas.

7 - Os Membros que apliquem medidas descritas no artigo 10.º e no n.º 1 do artigo 11.º na data da entrada em vigor do Acordo OMC notificarão essas medidas ao Comité das Medidas de Salvaguarda o mais tardar 60 dias após a entrada em vigor do Acordo OMC.

8 - Qualquer Membro pode notificar ao Comité das Medidas de Salvaguarda quaisquer disposições legislativas, regulamentares e administrativas, bem como quaisquer medidas ou acções objecto do presente Acordo que não tenham sido notificadas por outros Membros obrigados a fazê-lo por força do presente Acordo.

9 - Qualquer Membro pode notificar ao Comité das Medidas de Salvaguarda qualquer medida não governamental referida no n.º 3 do artigo 11.º

10 - Todas as notificações ao Conselho do Comércio de Mercadorias referidas no presente Acordo serão normalmente efectuadas por intermédio do Comité das Medidas de Salvaguarda.

11 - As disposições do presente Acordo em matéria de notificação não obrigam um Membro a revelar informações confidenciais cuja divulgação possa impedir a aplicação da lei ou ser de outro modo contrária ao interesse geral ou susceptível de causar prejuízo aos legítimos interesses comerciais de empresas públicas ou privadas.

Artigo 13.º

Fiscalização

1 - É criado um Comité das Medidas de Salvaguarda, sob a autoridade do Conselho do Comércio de Mercadorias, que está aberto à participação de qualquer Membro que se manifeste nesse sentido. O Comité terá as seguintes funções:

a) Acompanhar a aplicação geral do presente Acordo, apresentar anualmente ao Conselho do Comércio de Mercadorias um relatório sobre essa aplicação e formular recomendações tendo em vista o seu melhoramento;

b) Verificar, a pedido de um Membro afectado, se as regras em matéria de procedimento previstas no presente Acordo foram respeitadas relativamente a uma medida de salvaguarda e comunicar as suas conclusões ao Conselho do Comércio de Mercadorias;

c) Assistir os Membros, caso estes o solicitem, nas suas consultas em conformidade com as disposições do presente Acordo;

d) Examinar as medidas abrangidas pelo artigo 10.º e pelo n.º 1 do artigo 11.º, acompanhar a eliminação progressiva dessas medidas e informar, conforme adequado, o Conselho do Comércio de Mercadorias;

e) Examinar, a pedido do Membro que adopte uma medida de salvaguarda, se as propostas de suspensão de concessões ou de outras obrigações são «substancialmente equivalentes» e informar, conforme adequado, o Conselho do Comércio de Mercadorias;

f) Receber e examinar todas as notificações previstas no presente Acordo e informar, conforme adequado, o Conselho do Comércio de Mercadorias;

g) Desempenhar quaisquer outras funções relacionadas com o presente Acordo que o Conselho do Comércio de Mercadorias possa decidir.

2 - Para assistir o Comité no exercício da sua função de fiscalização, o Secretariado elaborará anualmente um relatório factual sobre o funcionamento do presente Acordo, baseado nas notificações e noutras informações fiáveis de que disponha.

Artigo 14.º

Resolução de litígios

As disposições dos artigos XXII e XXIII do GATT de 1994, tal como precisadas e aplicadas pelo Memorando de Entendimento sobre Resolução de Litígios, são aplicáveis às consultas e à resolução dos litígios abrangidos pelo presente Acordo.

ANEXO

Excepção referida ao n.º 2 do artigo 11.º

(ver documento original)

ANEXO 1B

ACORDO GERAL SOBRE O COMÉRCIO DE SERVIÇOS

Os Membros:

Reconhecendo a importância crescente do comércio de serviços para o crescimento e desenvolvimento da economia mundial;

Pretendendo estabelecer um quadro multilateral de princípios e regras aplicável ao comércio de serviços, com vista à expansão desse comércio em condições de transparência e liberalização progressiva como meio de promover o crescimento económico de todos os parceiros comerciais e o desenvolvimento dos países em desenvolvimento;

Desejando a rápida obtenção de níveis progressivamente superiores de liberalização do comércio de serviços através de rondas sucessivas de negociações multilaterais destinadas a promover o interesse de todos os participantes numa base mutuamente vantajosa e a assegurar um equilíbrio global de direitos e obrigações, sem contudo deixar de atender devidamente aos objectivos de política nacional;

Reconhecendo o direito dos Membros de regulamentar a prestação de serviços nos seus territórios e de introduzir novas regulamentações para o efeito, a fim de dar cumprimento aos objectivos de política nacional e, dadas as assimetrias existentes no que diz respeito ao grau de desenvolvimento das regulamentações em matéria de serviços nos vários países, a especial necessidade dos países em desenvolvimento de exercer esse direito;

Desejando promover uma participação crescente dos países em desenvolvimento no comércio de serviços e a expansão das suas exportações de serviços, inter alia através do reforço das respectivas capacidades nacionais em termos de prestação de serviços e da sua eficácia e competitividade;

Tendo especialmente em conta as sérias dificuldades sentidas pelos países menos desenvolvidos devido à sua situação económica especial e às suas necessidades, quer em termos de desenvolvimento, quer comerciais e financeiras;

acordam no seguinte:

PARTE I

Âmbito e definições

Artigo I

Âmbito e definições

1 - O presente Acordo é aplicável às medidas tomadas pelos Membros que afectem o comércio de serviços.

2 - Para efeitos do disposto no presente Acordo, o comércio de serviços é definido como a prestação de um serviço:

a) Com origem no território de um Membro e com destino ao território de qualquer outro Membro;

b) No território de um Membro a um consumidor de serviços de qualquer outro Membro;

c) Por um prestador de serviços de um Membro através da presença comercial no território de qualquer outro Membro;

d) Por um prestador de serviços de um Membro através da presença de pessoas singulares de um Membro no território de qualquer outro Membro.

3 - Para efeitos do disposto no presente Acordo:

a) Entende-se por «medidas tomadas pelos Membros» as medidas tomadas por:

i) Administrações e autoridades públicas centrais, regionais ou locais; e

ii) Organismos não governamentais no exercício dos poderes delegados pelas administrações ou autoridades públicas centrais, regionais ou locais.

No cumprimento das suas obrigações e compromissos ao abrigo do Acordo, cada Membro tomará todas as medidas adequadas ao seu alcance para assegurar a sua observância, no seu território, por parte das administrações ou autoridades públicas regionais e locais e dos organismos não governamentais;

b) O termo «serviços» abrange serviços em todos os sectores, com excepção dos serviços prestados no exercício da autoridade do Estado;

c) Entende-se por «serviço prestado no exercício da autoridade do Estado» qualquer serviço que não seja prestado nem numa base comercial, nem em concorrência com um ou mais prestadores de serviços.

PARTE II

Obrigações e disciplinas gerais

Artigo II

Tratamento da nação mais favorecida

1 - Relativamente a todas as medidas abrangidas pelo presente Acordo, cada Membro concederá imediata e incondicionalmente aos serviços e prestadores de serviços de qualquer outro Membro um tratamento não menos favorável do que o concedido aos serviços e prestadores de serviços equivalentes de qualquer outro país.

2 - Um Membro poderá manter uma medida incompatível como o disposto no n.º 1, desde que essa medida esteja incluída no Anexo relativo às isenções das obrigações previstas no artigo II e satisfaça as condições aí definidas.

3 - As disposições do presente Acordo não poderão ser interpretadas no sentido de impedir que um Membro confira ou conceda vantagens a países limítrofes a fim de facilitar o comércio, limitado a zonas fronteiriças contíguas, de serviços produzidos e consumidos localmente.

Artigo III

Transparência

1 - Cada Membro publicará prontamente e, salvo em situações de emergência, o mais tardar no momento da sua entrada em vigor, todas as medidas de aplicação geral relevantes que digam respeito ou afectem a aplicação do presente Acordo. Os acordos internacionais que digam respeito ou que afectem o comércio de serviços de que um Membro seja signatário serão igualmente publicados.

2 - Sempre que a publicação referida no n.º 1 não seja praticável, essas informações serão divulgadas ao público por outra forma.

3 - Cada Membro informará prontamente o Conselho do Comércio de Serviços, e pelo menos uma vez por ano, da introdução de novas disposições legislativas, regulamentares e administrativas, ou de eventuais alterações às já existentes, que afectem significativamente o comércio de serviços abrangidos pelos seus compromissos específicos ao abrigo do presente Acordo.

4 - Cada Membro responderá prontamente a todos os pedidos apresentados por qualquer outro Membro relativos a informações específicas sobre quaisquer das suas medidas de aplicação geral ou acordos internacionais na acepção do n.º 1. Cada Membro estabelecerá igualmente um ou mais pontos de informação para prestar informações específicas a outros Membros, mediante pedido, sobre todas essas questões, bem como sobre as questões sujeitas ao requisito de notificação previsto no n.º 3. Esses pontos de informação serão estabelecidos no prazo de dois anos a contar da data de entrada em vigor do Acordo que cria a OMC (designado por «Acordo OMC» no presente Acordo). Poderá ser acordada uma flexibilidade adequada no que se refere ao prazo de estabelecimento desses pontos de informação em relação a países em desenvolvimento Membros considerados individualmente. Os pontos de informação não deverão necessariamente ser depositários de legislação e regulamentação.

5 - Qualquer Membro poderá notificar o Conselho do Comércio de Serviços de qualquer medida tomada por qualquer outro Membro que considere afectar a aplicação do presente Acordo.

Artigo III-A

Divulgação de informações confidenciais

Nenhuma disposição do presente Acordo obrigará qualquer Membro a prestar informações confidenciais cuja divulgação possa entravar a aplicação da lei ou de qualquer outro modo ser contrária ao interesse público, ou que possa prejudicar os legítimos interesses comerciais de determinadas empresas, públicas ou privadas.

Artigo IV

Participação crescente dos países em desenvolvimento

1 - A crescente participação dos países em desenvolvimento Membros no comércio mundial será facilitada pelos compromissos específicos negociados assumidos pelos diferentes Membros nos termos do disposto nas partes III e IV do presente Acordo, relativos:

a) Ao reforço da sua capacidade interna em matéria de serviços e da sua eficácia e competitividade, inter alia através do acesso à tecnologia numa base comercial;

b) À melhoria do seu acesso aos circuitos de distribuição e redes de informação; e

c) À liberalização do acesso ao mercado em sectores e modos de prestação que lhes interessem em termos de exportação.

2 - Os países desenvolvidos Membros, e na medida do possível outros Membros, estabelecerão pontos de contacto no prazo de dois anos a contar da data de entrada em vigor do Acordo OMC, a fim de facilitar o acesso dos prestadores de serviço de países em desenvolvimento Membros a informações relacionadas com os respectivos mercados, relativas:

a) Aos aspectos comerciais e técnicos da prestação de serviços;

b) Ao registo, reconhecimento e obtenção de qualificações profissionais; e

c) À disponibilidade de tecnologia de serviços.

3 - Para implementação do disposto nos n.os 1 e 2, será atribuída uma prioridade especial aos países menos desenvolvidos Membros. Ter-se-á em especial atenção as sérias dificuldades dos países menos desenvolvidos em aceitar compromissos específicos negociados, atendendo à sua situação económica especial e às suas necessidades, quer em termos de desenvolvimento, quer comerciais e financeiras.

Artigo V

Integração económica

1 - O presente Acordo não impedirá que qualquer dos seus Membros seja parte ou subscreva um acordo de liberalização do comércio de serviços entre as partes nesse acordo, desde que o acordo em questão:

a) Tenha uma cobertura sectorial significativa (ver nota 1); e

b) Preveja a ausência ou a eliminação em termos substanciais de todo o tipo de discriminação, na acepção do artigo XVII, entre as partes nos sectores abrangidos pela alínea a), através:

i) Da eliminação de medidas de carácter discriminatório existentes; e ou

ii) Da proibição da introdução de novas medidas de carácter discriminatório ou de medidas mais discriminatórias;

quer na data de entrada em vigor desse acordo, quer segundo um calendário razoável, com excepção das medidas autorizadas nos termos dos artigos XI, XII, XIV e XIV-A.

2 - Para a avaliação do cumprimento das condições referidas na alínea b) do n.º 1, poderá ser tomada em consideração a relação entre o acordo e um processo mais vasto de integração económica ou de liberalização do comércio entre os países envolvidos.

3 - a) Nos casos em que países em desenvolvimento sejam partes num acordo do tipo referido no n.º 1, usar-se-á de uma certa flexibilidade no que diz respeito às condições estabelecidas no n.º 1, nomeadamente no que se refere à sua alínea b), consoante o nível de desenvolvimento dos países em questão, tanto em termos globais como em sectores e subsectores específicos.

b) Não obstante o disposto no n.º 6, sempre que um acordo do tipo referido no n.º 1 envolva apenas países em desenvolvimento, poderá ser concedido um tratamento mais favorável às pessoas colectivas que sejam propriedade ou controladas por pessoas singulares sob a jurisdição das partes no referido acordo.

4 - Qualquer acordo do tipo referido no n.º 1 destinar-se-á a promover o comércio entre as partes no acordo e não aumentará, relativamente a qualquer Membro que não participe no acordo, o nível global de obstáculos ao comércio de serviços nos respectivos sectores ou subsectores, comparativamente com o nível aplicável antes da conclusão desse acordo.

5 - Sempre que, aquando da conclusão, alargamento ou qualquer alteração significativa de qualquer acordo nos termos do n.º 1, um Membro tencione retirar ou alterar um compromisso específico de forma incompatível com as condições estabelecidas na sua lista, deverá comunicar essa alteração ou retirada com uma antecedência de pelo menos 90 dias, sendo aplicável o procedimento estabelecido nos n.os 2, 3 e 4 do artigo XXI.

6 - Um prestador de serviços de qualquer outro Membro que seja uma pessoa colectiva constituída nos termos da legislação de uma das partes num acordo do tipo referido no n.º 1 terá direito ao tratamento concedido ao abrigo desse acordo, desde que realize um volume significativo de ope-rações comerciais no território das partes nesse acordo.

7 - a) Os Membros que sejam partes em qualquer acordo nos termos do n.º 1 notificarão prontamente o Conselho do Comércio de Serviços de qualquer acordo desse tipo, bem como de qualquer alargamento ou alteração significativa desse acordo. Facultarão igualmente ao Conselho todas as informações relevantes que este possa solicitar. O Conselho poderá encarregar um grupo de trabalho de examinar esse acordo, ou qualquer alargamento ou alteração do mesmo, e de lhe apresentar um relatório sobre a sua compatibilidade com o disposto no presente artigo.

b) Os Membros que sejam partes em qualquer acordo do tipo referido no n.º 1 que seja implementado obedecendo a determinado calendário enviarão periodicamente ao Conselho do Comércio de Serviços um relatório sobre a sua implementação. O Conselho poderá encarregar um grupo de trabalho do exame desses relatórios se o considerar necessário.

c) Com base nos relatórios dos grupos de trabalho referidos nas alíneas a) e b), o Conselho poderá dirigir às partes as recomendações que considere adequadas.

8 - Um Membro que seja parte em qualquer acordo do tipo referido no n.º 1 não poderá pedir uma compensação pelas vantagens comerciais que possam advir para qualquer outro Membro em virtude desse acordo.

(nota 1) Esta condição é entendida em termos de números de sectores, volume de comércio afectado e modos de prestação. Para satisfazer esta condição, os acordos não devem prever a exclusão a priori de qualquer modo de prestação.

Artigo V-A

Acordo de integração dos mercados de trabalho

O presente Acordo não impedirá qualquer dos seus Membros de serem partes num acordo que estabeleça a integração plena (ver nota 2) dos mercados de trabalho entre as partes, desde que o acordo em questão:

a) Isente os cidadãos das partes no acordo dos requisitos relativos às autorizações de residência e de trabalho;

b) Seja notificado ao Conselho do Comércio de Serviços.

(nota 2) Normalmente, essa integração proporciona aos cidadãos das partes envolvidas um direito de livre admissão nos mercados de trabalho das partes e inclui medidas relativas às condições de remuneração, outras condições de trabalho e benefícios sociais.

Artigo VI

Regulamentação interna

1 - Nos sectores em que sejam assumidos compromissos específicos, cada Membro valerá por que todas as medidas de aplicação geral que afectem o comércio de serviços sejam administradas de um modo razoável, objectivo e imparcial.

2 - a) Logo que possível, cada Membro manterá ou instituirá tribunais ou processos judiciais, arbitrais ou administrativos que permitam, a pedido de um prestador de serviços afectado, a imediata revisão ou, eventualmente, a adopção de medidas correctivas adequadas em relação a decisões administrativas que afectem o comércio de serviços. Sempre que esses processos não sejam independentes do organismo responsável pela decisão administrativa em causa, o Membro velará por que os processos permitam efectivamente uma revisão objectiva e imparcial.

b) As disposições da alínea a) não poderão ser interpretadas no sentido de exigir que um Membro institua esses tribunais ou processos nos casos em que tal seja incompatível com o seu quadro constitucional ou com a natureza do seu sistema jurídico.

3 - Sempre que seja necessária uma autorização para a prestação de um serviço em relação ao qual tenha sido assumido um compromisso específico, as autoridades competentes de um Membro informarão o requerente, num prazo razoável a contar da apresentação de um pedido considerado completo nos termos da legislação e regulamentação interna, da decisão tomada sobre o pedido. A pedido do requerente, as autoridades competentes do Membro prestarão, sem atrasos injustificados, informações relativas à situação do pedido.

4 - A fim de assegurar que as medidas relativas aos requisitos e processos em matéria de qualificações, as normas técnicas e os requisitos em matéria de concessão de licenças não constituam obstáculos desnecessários ao comércio de serviços, o Conselho do Comércio de Serviços estabelecerá as disciplinas necessárias por intermédio de organismos adequados que poderá instituir. Essas disciplinas destinar-se-ão a assegurar que, inter alia, esses requisitos:

a) Sejam baseados em critérios objectivos e transparentes, tais como a competência e a capacidade para prestar o serviço;

b) Não sejam mais complexos do que o necessário para garantir a qualidade do serviço;

c) Não constituam por si próprios uma restrição à prestação do serviço, no caso de processos de concessão de licenças.

5 - a) Nos sectores em que um Membro tenha assumido compromissos específicos na pendência da entrada em vigor de disciplinas desenvolvidas nesses sectores nos termos do n.º 4, o Membro em questão não aplicará requisitos em matéria de concessão de licenças e de qualificação nem normas técnicas que anulem ou comprometam esses compromissos específicos de um modo que:

i) Não seja compatível com os critérios definidos nas alíneas a), b) ou c) do n.º 4;

ii) Não se coadune com o que seria razoavelmente de esperar da parte desse Membro na altura em que foram assumidos os compromissos específicos nesses sectores.

b) Para determinar se um Membro satisfaz a obrigação prevista na alínea a) do n.º 5, ter-se-á em conta as normas internacionais de organizações internacionais competentes (ver nota 3), aplicadas por esse Membro.

6 - Nos sectores em que sejam assumidos compromissos específicos relativamente aos serviços das profissões liberais, cada Membro estabelecerá procedimentos adequados para verificar a competência dos profissionais liberais de qualquer outro Membro.

(nota 3) Entende-se por «organizações internacionais competentes» os organismos internacionais a que possam aderir os organismos competentes de pelo menos todos os Membros da OMC.

Artigo VII

Reconhecimento

1 - Para efeitos do cumprimento, na totalidade ou em parte, das suas normas ou critérios de autorização, licenciamento ou certificação de prestadores de serviços, e sob reserva dos requisitos previstos no n.º 3, um Membro poderá reconhecer a formação ou experiência obtida, os requisitos preenchidos, ou as licenças ou certificados concedidos num determinado país. Esse reconhecimento, que poderá processar-se através de harmonização ou por outra forma, poderá basear-se num acordo ou convénio com o país em causa ou ser concedido de forma autónoma.

2 - Um Membro que seja parte num acordo ou convénio do tipo referido no n.º 1, existente ou futuro, facultará aos outros Membros interessados a possibilidade de negociar a sua adesão a esse acordo ou convénio ou de negociar com esse Membro acordos ou convénios comparáveis. Sempre que um Membro conceda o reconhecimento de forma autónoma, facultará a qualquer outro Membro a possibilidade de demonstrar que a formação, experiência, licenças ou certificados obtidos ou os requisitos preenchidos no território desse outro Membro merecem esse reconhecimento.

3 - Um Membro não concederá o reconhecimento de um modo que constitua um meio de discriminação entre países a nível da aplicação das suas normas ou critérios de autorização, licenciamentos ou certificação de prestadores de serviços, ou uma restrição dissimulada ao comércio de serviços.

4 - Cada Membro deverá:

a) Informar o Conselho do Comércio de Serviços, no prazo de 12 meses a contar da data em que o Acordo OMC produz efeitos em relação a esse Membro, das medidas em vigor no seu território em matéria de reconhecimento e indicar se essas medidas se baseiam em acordos ou convénios do tipo referido no n.º 1;

b) Informar prontamente o Conselho do Comércio de Serviços, com a máxima antecedência possível, da abertura de negociações sobre um acordo ou convénio do tipo referido no n.º 1, a fim de facultar a qualquer outro Membro a possibilidade de comunicar o seu interesse em participar nas negociações antes de estas entrarem numa fase avançada;

c) Informar prontamente o Conselho do Comércio de Serviços sempre que adopte novas medidas em matéria de reconhecimento ou altere significativamente medidas já existentes e indicar se as medidas se baseiam num acordo ou convénio do tipo referido no n.º 1.

5 - Sempre que possível, o reconhecimento deverá basear-se em critérios acordados multilateralmente. Nos casos em que tal se justifique, os Membros trabalharão em colaboração com organizações intergovernamentais e não governamentais competentes com vista ao estabelecimento e adopção de normas e critérios internacionais comuns em matéria de reconhecimento e de normas internacionais comuns aplicáveis ao exercício de actividades de serviços, incluindo as profissões liberais.

Artigo VIII

Monopólios e prestadores de serviços em regime de exclusividade

1 - Cada Membro velará por que qualquer prestador de serviços que opere em regime de monopólio no seu território não actue, no exercício dessa actividade no mercado relevante, de um modo incompatível com as obrigações do Membro em causa ao abrigo do disposto no artigo II e com os compromissos específicos desse Membro.

2 - Sempre que um prestador de serviços que opere em regime de monopólio no território de um Membro esteja em concorrência, quer directamente quer através de uma empresa associada, para a prestação de um serviço que saia do âmbito dos seus direitos de monopólio e que seja abrangido pelos compromissos específicos desse Membro, o Membro em causa velará por que esse prestador de serviços não abuse da sua posição de monopólio para agir no seu território de um modo incompatível com esses compromissos.

3 - O Conselho do Comércio de Serviços poderá, a pedido de um Membro que tenha razões para crer que um prestador de serviços que opere em regime de monopólio no território de qualquer outro Membro está a agir de um modo incompatível com o disposto no n.º 1 ou no n.º 2, solicitar ao Membro responsável pelo estabelecimento, manutenção ou autorização desse prestador de serviços que forneça informações específicas sobre as operações relevantes.

4 - Sempre que, após a data de entrada em vigor do Acordo OMC, um Membro conceda direitos de monopólio relativamente à prestação de um serviço abrangido pelos seus compromissos específicos, esse Membro deverá notificar o Conselho do Comércio de Serviços da decisão de conceder esses direitos, com uma antecedência de pelo menos três meses em relação à data prevista para a sua implementação, sendo aplicável o disposto nos n.os 2, 3 e 4 do artigo XXI.

5 - As disposições do presente artigo serão igualmente aplicáveis em relação aos prestadores de serviços em regime de exclusividade nos casos em que um Membro, formalmente ou na prática: a) seja responsável pela autorização ou estabelecimento de um número reduzido de prestadores de serviços, e b) impeça de forma substancial a concorrência entre esses prestadores de serviços no seu território.

Artigo IX

Práticas comerciais

1 - Os Membros reconhecem que certas práticas comerciais dos prestadores de serviços, para além das abrangidas pelo artigo VIII, podem restringir a concorrência e desse modo limitar o comércio de serviços.

2 - Cada Membro, a pedido de qualquer outro Membro, iniciará consultas com vista à eliminação das práticas referidas no n.º 1. O Membro requerido mostrará toda a receptividade em relação a esse pedido e cooperará através de fornecimento de informações não confidenciais à disposição do público que sejam relevantes para o assunto em questão. O Membro requerido fornecerá igualmente outras informações disponíveis ao Membro requerente, dentro do respeito da sua legislação interna e sob reserva da conclusão de um acordo satisfatório relativamente à salvaguarda da sua confidencialidade por parte do Membro requerente.

Artigo X

Medidas de salvaguarda em situação de emergência

1 - Serão organizadas negociações multilaterais sobre a questão das medidas de salvaguarda em situações de emergência, com base no princípio da não discriminação. Os resultados dessas negociações produzirão efeitos o mais tardar três anos a contar da data da entrada em vigor do Acordo OMC.

2 - No período anterior à data em que os resultados das negociações referidas no n.º 1 passarão a produzir efeitos, qualquer Membro poderá, não obstante o disposto no n.º 1 do artigo XXI, notificar o Conselho do Comércio de Serviços da sua intenção de alterar ou retirar um compromisso específico após um período de um ano a contar da data de entrada em vigor desse compromisso, desde que o Membro apresente ao Conselho razões que justifiquem que a alteração ou retirada não possa aguardar o decurso do prazo de três anos previsto no n.º 1 do artigo XXI.

3 - As disposições do n.º 2 deixarão de ser aplicáveis três anos após a data de entrada em vigor do Acordo OMC.

Artigo XI

Pagamentos e transferências

1 - Excepto nas circunstâncias previstas no artigo XII, um Membro não aplicará restrições às transferências e pagamentos internacionais relativos a transacções correntes relacionadas com os seus compromissos específicos.

2 - Nenhuma disposição do presente Acordo afectará os direitos e obrigações dos membros do Fundo Monetário Internacional nos termos dos respectivos estatutos, incluindo a utilização de medidas cambiais em conformidade com os estatutos, desde que um Membro não imponha restrições às transacções de capitais de modo incompatível com os seus compromissos específicos relativos a essas transacções, excepto ao abrigo do disposto no artigo XII ou a pedido do Fundo.

Artigo XII

Restrições para salvaguarda da situação da balança de pagamentos

1 - No caso de se verificarem sérias dificuldades a nível da balança de pagamentos e da situação financeira externa ou de existir uma ameaça de dificuldades desse tipo, um Membro poderá adoptar ou manter restrições ao comércio de serviços em relação aos quais tenha assumido compromissos específicos, incluindo as restrições aos pagamentos ou transferências relativos a transacções relacionadas com esses compromissos. Reconhece-se que determinadas pressões sobre a balança de pagamentos de um Membro em processo de desenvolvimento económico ou de transição económica poderão exigir o recurso a restrições para assegurar, inter alia, a manutenção de um nível de reservas financeiras adequado para a implementação do seu programa de desenvolvimento económico ou de transição económica.

2 - As restrições referidas no n.º 1:

a) Não estabelecerão qualquer discriminação entre os Membros;

b) Serão compatíveis com os estatutos do Fundo Monetário Internacional;

c) Evitarão prejuízos desnecessários aos interesses comerciais, económicos e financeiros de qualquer outro Membro;

d) Não ultrapassarão a medida necessária para fazer face às circunstâncias descritas no n.º 1;

e) Serão temporárias e serão suprimidas progressivamente à medida que a situação descrita no n.º 1 for melhorando.

3 - Ao determinar a incidência dessas restrições, os Membros poderão dar prioridade à prestação de serviços que sejam mais essenciais aos seus programas económicos ou de desenvolvimento. No entanto, essas restrições não serão adoptadas ou mantidas com o objectivo de proteger um determinado sector de serviços.

4 - Todas as restrições adoptadas ou mantidas nos termos do n.º 1, ou quaisquer alterações a essas restrições, serão prontamente notificadas ao Conselho Geral.

5 - a) Os Membros que apliquem as disposições do presente artigo iniciarão imediatamente consultadas com o Comité das Restrições à Balança de Pagamentos sobre as restrições adoptadas ao abrigo do presente artigo.

b) A Conferência Ministerial estabelecerá procedimentos (ver nota 4) para consultas periódicas com o objectivo de permitir que sejam feitas as recomendações adequadas ao Membro em questão.

c) Essas consultas destinar-se-ão a avaliar a situação da balança de pagamentos do Membro em questão e as restrições adoptadas ou mantidas ao abrigo do presente artigo, tendo em conta, inter alia, factores como:

i) A natureza e extensão das dificuldades verificadas a nível da balança de pagamentos e da situação financeira externa;

ii) O enquadramento económico e comercial externo do Membro em processo de consulta;

iii) Medidas correctivas alternativas a que seja possível recorrer.

d) Nas consultas será analisada a conformidade de quaisquer restrições com o disposto no n.º 2, e nomeadamente a supressão progressiva de restrições de acordo com o disposto na alínea e) do n.º 2.

e) No decurso dessas consultas, todos os dados de natureza estatística ou outra apresentados pelo Fundo Monetário Internacional relativamente a câmbios, reservas monetárias e balança de pagamentos serão aceites e as conclusões basear-se-ão na avaliação efectuada pelo Fundo da situação da balança de pagamentos e da situação financeira externa do Membro em processo de consulta.

6 - Se um Membro que não seja membro do Fundo Monetário Internacional pretender aplicar as disposições do presente artigo, a Conferência Ministerial estabelecerá um procedimento de análise e quaisquer outros procedimentos necessários.

(nota 4) Os procedimentos nos termos do n.º 5 serão idênticos aos previstos no âmbito do GATT de 1994.

Artigo XIII

Contratos públicos

1 - Os artigos II, XVI e XVII não serão aplicáveis às disposições legislativas e regulamentares nem aos requisitos que regem os contratos públicos celebrados por organismos públicos e referentes a serviços adquiridos para dar resposta a necessidades dos poderes públicos, e não com vista à revenda numa perspectiva comercial ou com vista à sua utilização no âmbito da prestação de serviços para venda numa perspectiva comercial.

2 - No prazo de dois anos a contar da data de entrada em vigor do Acordo OMC, serão organizadas negociações multilaterais sobre contratos públicos de serviços abrangidos pelo presente Acordo.

Artigo XIV

Excepções gerais

Na condição de essas medidas não serem aplicadas de um modo que constitua um meio de discriminação arbitrária ou injustificável entre países em que existem condições idênticas, ou uma restrição dissimulada ao comércio de serviços, nenhuma disposição do presente Acordo poderá ser interpretada no sentido de impedir a adopção ou a aplicação por qualquer Membro de medidas:

a) Necessárias para proteger os bons costumes ou para manter a ordem pública (ver nota 5);

b) Necessárias para a protecção da vida e da saúde das pessoas e animais e para a preservação das plantas;

c) Necessárias para garantir a observância das disposições legislativas e regulamentares que não sejam incompatíveis com o disposto no presente Acordo, nomeadamente as relativas:

i) À prevenção de práticas falaciosas e fraudulentas ou destinadas a corrigir os efeitos do incumprimento de contratos de serviços;

ii) À protecção da privacidade dos indivíduos relativamente ao processamento e divulgação de dados pessoais e à protecção da confidencialidade de registos e contas pessoais;

iii) À segurança;

d) Incompatíveis com o disposto no artigo XVII, desde que a diferença de tratamento tenha por objectivo garantir a imposição ou cobrança equitativa ou eficaz (ver nota 6) de impostos directos relativamente a serviços ou prestadores de serviços de outros Membros;

e) Incompatíveis com o disposto no artigo II, desde que a diferença de tratamento resulte de um acordo destinado a evitar a dupla tributação ou de disposições destinadas a evitar a dupla tributação constantes de qualquer outro acordo internacional ou convénio a que o Membro se encontre vinculado.

(nota 5) A excepção relativa à ordem pública só poderá ser invocada se existir uma ameaça real e suficientemente séria a um dos interesses fundamentais da sociedade

(nota 6) As medidas destinadas a garantir a imposição ou cobrança equitativa ou eficaz de impostos directos incluem medidas tomadas por um Membro no âmbito do seu sistema fiscal que:

i) Sejam aplicáveis a prestadores de serviços não residentes em reconhecimento do facto de a obrigação fiscal dos não residentes ser determinada relativamente aos elementos tributáveis originados ou localizados no território do Membro;

ii) Sejam aplicáveis a não residentes a fim de garantir a imposição ou cobrança de impostos no território do Membro;

iii) Sejam aplicáveis a não residentes ou residentes a fim de impedir a evasão ou a fraude fiscal, incluindo medidas de execução;

iv) Sejam aplicáveis a consumidores de serviços prestados no território de outro Membro ou a partir desse território, a fim de garantir a imposição ou cobrança de impostos a esses consumidores decorrentes de fontes no território do Membro;

v) Distingam os prestadores de serviços sujeitos a impostos sobre elementos tributáveis a nível mundial dos restantes prestadores de serviços, em reconhecimento da diferença existente entre eles em termos de natureza da matéria colectável; ou

vi) Determinem, atribuam ou repartam rendimentos, lucros, ganhos, perdas, débitos ou créditos de pessoas ou sucursais residentes, ou entre pessoas que tenham uma ligação entre si ou entre sucursais da mesma pessoa, a fim de salvaguardar a matéria colectável do Membro.

Os termos ou conceitos fiscais constantes da alínea d) do artigo XIV e da presente nota de pé-de-página são determinados de acordo com as definições e conceitos fiscais, ou com definições e conceitos equivalentes ou semelhantes, ao abrigo da legislação interna do Membro que toma a medida.

Artigo XIV-A

Excepções por razões de segurança

1 - Nenhuma disposição do presente Acordo poderá ser interpretada no sentido de:

a) Exigir que qualquer Membro forneça informações cuja divulgação considere contrária aos seus interesses essenciais em matéria de segurança;

b) Impedir qualquer Membro de tomar medidas que considere necessárias para a protecção dos seus interesses essenciais em matéria de segurança:

i) Relativas à prestação de serviços realizada directa ou indirectamente para efeitos de aprovisionamento de um estabelecimento militar;

ii) Relativas a materiais cindíveis e de fusão ou a materiais a partir dos quais estes são obtidos:

iii) Tomadas em período de guerra ou noutra situação de emergência a nível das relações internacionais; ou

c) Impedir qualquer Membro de tomar medidas em cumprimento das suas obrigações ao abrigo da Carta das Nações Unidas para a manutenção da paz e da segurança internacionais.

2 - O Conselho do Comércio de Serviços será informado, tanto quanto possível, das medidas tomadas nos termos das alíneas b) e c) do n.º 1, bem como do termo da sua aplicação.

Artigo XV

Subvenções

1 - Os Membros reconhecem que, em determinadas circunstâncias, as subvenções poderão ter efeitos de distorção do comércio de serviços. Os Membros encetarão negociações com vista a desenvolver as necessárias disciplinas multilaterais para evitar esses efeitos de distorção do comércio (ver nota 7). As negociações incidirão igualmente sobre a adequação dos procedimentos de compensação. Essas negociações reconhecerão o papel das subvenções para os programas de desenvolvimento dos países em desenvolvimento e terão em conta as necessidades dos Membros, nomeadamente os países em desenvolvimento Membros, em termos de flexibilidade neste domínio. Para efeitos dessas negociações, os Membros trocarão informações sobre todas as subvenções relacionadas com o comércio de serviços que concedam aos prestadores de serviços nacionais.

2 - Qualquer Membro que considere estar a ser prejudicado por uma subvenção de outro Membro poderá solicitar a realização de consultas com esse Membro sobre essa matéria. Esses pedidos de consultas merecerão uma boa receptividade.

(nota 7) Um futuro programa de trabalho determinará o modo como serão conduzidas as negociações sobre essas disciplinas multilaterais, bem como o respectivo calendário.

PARTE III

Compromissos específicos

Artigo XVI

Acesso ao mercado

1 - No que diz respeito ao acesso ao mercado através dos modos de prestação definidos no artigo I, cada Membro concederá aos serviços e aos prestadores de serviços de qualquer outro Membro um tratamento não menos favorável do que o concedido de acordo com as condições e limitações acordadas e especificadas na sua lista (ver nota 8).

2 - Nos sectores em que sejam assumidos compromissos de acesso ao mercado, as medidas que um Membro não manterá nem adoptará em relação a uma subdivisão regional ou à tonalidade do seu território, salvo especificação em contrário na sua lista, são definidas como:

a) Limitações do número de prestadores de serviços, quer sob a forma de quotas numéricas, monopólios ou prestadores de serviços em regime de exclusividade, quer com base numa avaliação das necessidades económicas;

b) Limitações do valor total das transacções ou activos nos sectores de serviços, sob a forma de quotas numéricas ou com base numa avaliação das necessidades económicas;

c) Limitações do número total de operações de serviços ou da quantidade total de serviços prestados expressas em termos de unidades numéricas específicas, sob a forma de quotas ou com base numa avaliação das necessidades económicas (ver nota 9);

d) Limitações do número total de pessoas singulares que podem ser empregadas num determinado sector de serviços ou que um prestador de serviços pode empregar e que são necessárias para a prestação de um serviço específico, estando directamente relacionadas com esse serviço, sob a forma de quotas numéricas ou com base numa avaliação das necessidades económicas;

e) Medidas que restringem ou exigem tipos específicos de entidades jurídicas ou de empresas comuns através das quais um prestador de serviços pode prestar um serviço; e

f) Limitações à participação de capital estrangeiro através da fixação de um limite máximo percentual para a participação de estrangeiros no capital social de empresas ou do valor total do investimento estrangeiro individual ou global.

(nota 8) Se um membro assumir um compromisso de acesso ao mercado relativamente à prestação de um serviço através do modo de prestação referido na alínea a) do n.º 2 do artigo I e se o movimento de capitais transfronteiras constituir uma parte essencial do próprio serviço, esse Membro é obrigado a autorizar esse movimento de capitais. Se um Membro assumir um compromisso de acesso ao mercado relativamente à prestação de um serviço através do modo de prestação referido na alínea c) do n.º 2 do artigo I, é obrigado a autorizar as correspondentes transferências de capitais para o seu território.

(nota 9) A alínea c) do n.º 2 não abrange as medidas de um Membro que limitem os factores utilizados na prestação de serviços.

Artigo XVII

Tratamento nacional

1 - Nos termos inscritos na sua lista, e tendo em conta as condições e qualificações aí estabelecidas, cada Membro concederá aos serviços e aos prestadores de serviços de qualquer outro Membro, relativamente a todas as medidas que afectem a prestação de serviços, um tratamento não menos favorável do que o que concede aos serviços e prestadores de serviços nacionais comparáveis (ver nota 10).

2 - Um Membro poderá satisfazer o requisito previsto no n.º 1 concedendo aos serviços e prestadores de serviços de qualquer outro Membro um tratamento formalmente idêntico ou formalmente diferente do que concede aos serviços e prestadores de serviços nacionais comparáveis.

3 - Um tratamento formalmente idêntico ou formalmente diferente será considerado menos favorável se alterar as condições de concorrência a favor dos serviços ou prestadores de serviços do Membro comparativamente com serviços ou prestadores de serviços comparáveis de qualquer outro Membro.

(nota 10) Os compromissos específicos assumidos ao abrigo do presente artigo não poderão ser interpretados no sentido de exigir que qualquer Membro ofereça uma compensação por quaisquer desvantagens concorrenciais inerentes que resultem do facto de os serviços ou prestadores de serviços em questão serem estrangeiros.

Artigo XVIII

Compromissos adicionais

Os Membros poderão negociar compromissos relativamente a medidas que afectem o comércio de serviços não sujeitas a inscrição nas listas nos termos do disposto nos artigos XVI ou XVII, nomeadamente as referentes a qualificações, normas ou questões de licenciamento. Esses compromissos serão inscritos na lista do Membro.

PARTE IV

Liberalização progressiva

Artigo XIX

Negociação de compromissos específicos

1 - Para prossecução dos objectivos do presente Acordo, os Membros iniciarão rondas de negociações sucessivas, com início o mais tardar cinco anos a contar da data de entrada em vigor do Acordo OMC e depois periodicamente, com vista a alcançar um nível progressivamente superior de liberalização. Essas negociações terão por objecto reduzir ou eliminar os efeitos adversos de certas medidas sobre o comércio de serviços, de modo a proporcionar um acesso efectivo ao mercado. Este processo desenrolar-se-á com vista a promover os interesses de todos os participantes numa base mutuamente vantajosa e a assegurar um equilíbrio global dos direitos e obrigações.

2 - O processo de liberalização será levado a cabo no devido respeito dos objectivos de política nacional e do nível de desenvolvimento dos diferentes Membros, tanto em termos globais como em sectores específicos. Os diferentes países em desenvolvimento Membros beneficiarão de uma flexibilidade adequada de modo a permitir-lhes liberalizar menos sectores e menos tipos de transacções e alargar progressivamente o acesso ao mercado de acordo com o seu estado de desenvolvimento, bem como, ao facultar o acesso aos seus mercados a prestadores de serviços estrangeiros, subordinar esse acesso a condições destinadas a atingir os objectivos referidos no artigo IV.

3 - Serão estabelecidas directrizes e procedimentos de negociação em relação a cada ronda. Para o estabelecimento dessas directrizes, o Conselho do Comércio de Serviços procederá a uma avaliação do comércio de serviços em termos globais e numa base sectorial por referência aos objectivos do presente Acordo, nomeadamente os previstos no n.º 1 do artigo IV. As directrizes de negociação estabelecerão modalidades para o tratamento da liberalização realizada de forma autónoma pelos Membros desde as negociações anteriores, bem como para o tratamento especial a dispensar aos países menos desenvolvidos Membros nos termos do disposto no n.º 3 do artigo IV.

4 - O processo de liberalização progressiva será desenvolvido em cada uma dessas rondas através de negociações bilaterais, plurilaterais ou multilaterais destinadas a aumentar o nível geral de compromissos específicos assumidos pelos Membros ao abrigo do presente Acordo.

Artigo XX

Listas de compromissos específicos

1 - Cada Membro estabelecerá uma lista incluindo os compromissos específicos que assume ao abrigo da parte III do presente Acordo. No que diz respeito aos sectores em que esses compromissos são assumidos, cada lista deverá especificar:

a) As condições e limitações referentes ao acesso ao mercado;

b) As condições e qualificações referentes ao tratamento nacional;

c) As obrigações relativamente a compromissos adicionais;

d) Nos casos em que tal se justifique, o calendário de implementação desses compromissos; e

e) A data de entrada em vigor desses compromissos.

2 - As medidas simultaneamente incompatíveis com os artigos XVI e XVII serão inscritas na coluna relativa ao artigo XVI. Neste caso, considerar-se-á que inscrição constitui igualmente uma condição ou qualificação para efeitos do artigo XVII.

3 - As listas de compromissos específicos serão anexas ao presente Acordo, constituindo uma parte integrante do mesmo.

Artigo XXI

Alteração das listas

1 - a) Um Membro (designado por «Membro que introduz uma alteração» no presente artigo) poderá alterar ou retirar qualquer compromisso constante da sua lista a qualquer momento após decorridos três anos a contar da data em que esse compromisso entrou em vigor, de acordo com o disposto no presente artigo.

b) Um Membro que introduz uma alteração notificará o Conselho do Comércio de Serviços da sua intenção de alterar ou retirar um compromisso nos termos do presente artigo, o mais tardar três meses antes da data prevista para implementação da alteração ou da retirada.

2 - a) A pedido de qualquer Membro cujos benefícios ao abrigo do presente Acordo possam ser afectados (designado por «Membro afectado» no presente artigo) por uma alteração ou retirada prevista e notificada nos termos da alínea b) do n.º 1, o Membro que introduz uma alteração acederá a negociar com vista a chegar a acordo quanto a eventuais compensações necessárias. No decurso dessas negociações e a nível desse acordo, os Membros envolvidos esforçar-se-ão por manter um nível geral de compromissos mutuamente vantajosos não menos favorável ao comércio do que o previsto nas listas de compromissos específicos antes dessas negociações.

b) As compensações serão estabelecidas na base do princípio da nação mais favorecida.

3 - a) Caso o Membro que introduz uma alteração e qualquer Membro afectado não cheguem a acordo antes do termo do período previsto para as negociações, o Membro afectado poderá submeter o assunto a arbitragem. Qualquer Membro afectado que pretenda fazer valer um eventual direito a compensação deverá participar no processo de arbitragem.

b) Se nenhum Membro afectado tiver requerido um processo de arbitragem, o Membro que introduz uma alteração será livre de implementar a alteração ou retirada prevista.

4 - a) O Membro que introduz uma alteração não poderá alterar ou retirar o seu compromisso até ao momento em que tenha procedido à compensação em conformidade com as conclusões do processo de arbitragem.

b) Caso o Membro que introduz uma alteração implemente a alteração ou retirada prevista e não dê cumprimento às conclusões do processo de arbitragem, qualquer Membro afectado que tenha participado no processo de arbitragem poderá alterar ou retirar vantagens substancialmente equivalentes em conformidade com as referidas conclusões. Não obstante o disposto no artigo II, essa alteração ou retirada poderá ser implementada unicamente em relação ao Membro que introduz uma alteração.

5 - O Conselho do Comércio de Serviços estabelecerá procedimentos para a rectificação ou alteração das listas. Qualquer Membro que tenha alterado ou retirado compromissos inscritos nas listas ao abrigo do disposto no presente artigo procederá à alteração da sua lista de acordo com esses procedimentos.

PARTE V

Disposições institucionais

Artigo XXII

Consultas

1 - Cada Membro mostrará boa receptividade e facultará a possibilidade de consultas relativamente aos factos que possam ser apresentados por qualquer outro Membro sobre qualquer questão que afecte a aplicação do presente Acordo. O Memorando de Entendimento sobre a Resolução de Litígios (MERL) será aplicável a essas consultas.

2 - O Conselho do Comércio de Serviços ou o Órgão de Resolução de Litígios (ORL) poderão, a pedido de um Membro, iniciar consultas com qualquer Membro ou Membros relativamente a qualquer questão em relação à qual não tenha sido possível encontrar uma solução satisfatória através das consultas previstas no n.º 1.

3 - Um Membro não poderá invocar o disposto no artigo XVII, quer ao abrigo do presente artigo quer do artigo XXIII, relativamente a uma medida de um outro Membro que integre o âmbito de aplicação de um acordo internacional celebrado entre ambos e destinado a evitar a dupla tributação. No caso de desacordo entre os Membros quanto a saber se uma medida integra o âmbito de aplicação de um acordo desse tipo celebrado entre si, cada um dos Membros poderá submeter a questão ao Conselho do Comércio de Serviços (ver nota 11). O Conselho submeterá a questão a arbitragem. A decisão arbitral será definitiva e vinculativa para os Membros.

(nota 11) No que diz respeito aos acordos destinados a evitar a dupla tributação existentes na data da entrada em vigor do Acordo OMC, essa questão só poderá ser submetida ao Conselho do Comércio de Serviços com o consentimento de ambas as partes num acordo desse tipo.

Artigo XXIII

Resolução de litígios e execução

1 - Caso um Membro considere que qualquer outro Membro não cumpre as suas obrigações ou compromissos específicos ao abrigo do presente Acordo, esse Membro poderá recorrer ao MERL com vista a obter uma resolução mutuamente satisfatória da questão.

2 - Se o ORL considerar que as circunstâncias são suficientemente graves para justificar uma medida desse tipo, poderá autorizar um Membro ou Membros a suspender a aplicação em relação a qualquer outro Membro ou Membros das obrigações e compromissos específicos de acordo com o disposto no artigo 22.º do MERL.

3 - Caso um Membro considere que qualquer vantagem de que razoavelmente deveria beneficiar nos termos de um compromisso específico de outro Membro ao abrigo do disposto na parte III do presente Acordo é anulada ou comprometida na sequência da aplicação de qualquer medida que não infringe o disposto no presente Acordo, esse Membro poderá recorrer ao MERL. Se o ORL considerar que a medida anulou ou comprometeu essa vantagem, o Membro afectado terá direito a uma compensação mutuamente satisfatória com base no disposto no n.º 2 do artigo XXI, que poderá incluir a alteração ou retirada da medida. Caso os Membros em questão não consigam chegar a acordo, será aplicável o disposto no artigo 22.º do MERL.

Artigo XXIV

Conselho do Comércio de Serviços

1 - O Conselho do Comércio de Serviços desempenhará as funções que lhe sejam atribuídas com vista a facilitar a aplicação do presente Acordo e a promover os seus objectivos. O Conselho poderá instituir os órgãos auxiliares que considere adequados para o correcto desempenho das suas funções.

2 - O Conselho e, salvo decisão em contrário do Conselho, os seus órgãos auxiliares estarão abertos à participação dos representantes de todos os Membros.

3 - O Presidente do Conselho será eleito pelos Membros.

Artigo XXV

Cooperação técnica

1 - Os prestadores de serviços dos Membros que necessitem de uma assistência desse tipo terão acesso aos serviços dos pontos de contacto referidos no n.º 2 do artigo VI.

2 - A assistência técnica aos países em desenvolvimento será prestada a nível multilateral pelo Secretariado, sendo decidida pelo Conselho do Comércio de Serviços.

Artigo XXVI

Relações com outras organizações internacionais

O Conselho Geral tomará as providências adequadas com vista à consulta e cooperação com as Nações Unidas e os seus organismos especializados, bem como com outras organizações intergovernamentais que intervenham na área dos serviços.

PARTE VI

Disposições finais

Artigo XXVII

Recusa da concessão de benefícios

Um Membro poderá recusar a concessão dos benefícios decorrentes do presente Acordo:

a) À prestação de um serviço, caso determine que o serviço é prestado a partir ou no território de um não Membro ou de um Membro em relação ao qual o Membro que impõe a recusa não aplica o Acordo OMC;

b) No caso da prestação de um serviço de transporte marítimo, caso determine que o serviço é prestado:

i) Por um navio registado nos termos da legislação de um não Membro ou de um Membro em relação ao qual o Membro que impõe a recusa não aplica o Acordo OMC; e

ii) Por uma pessoa de um não Membro, ou de um Membro em relação ao qual o Membro que impõe a recusa não aplica o Acordo OMC, que opere e/ou utilize o navio na totalidade ou em parte;

c) A um prestador de serviços que seja uma pessoa colectiva, caso determine que não se trata de um prestador de serviços de outro Membro ou que se trata de um prestador de serviços de um Membro em relação ao qual o Membro que impõe a recusa não aplica o Acordo OMC.

Artigo XXVIII

Definições

Para efeitos do disposto no presente Acordo:

a) Entende-se por «medida» qualquer medida tomada por um Membro, sob a forma de lei, regulamentação, regra, procedimento, decisão, acção administrativa ou sob qualquer outra forma;

b) A «prestação de um serviço» inclui a produção, distribuição, comercialização, venda e entrega de um serviço;

c) As «medidas tomadas por Membros que afectam o comércio de serviços» incluem medidas relativas:

i) À aquisição, pagamento ou utilização de um serviço;

ii) Ao acesso e utilização, relacionados com a prestação de um serviço, de serviços que esses Membros exigem que sejam oferecidos ao público em geral;

iii) À presença, incluindo a presença comercial, de pessoas de um Membro para a prestação de um serviço no território de um outro Membro;

d) Entende-se por «presença comercial» qualquer forma de estabelecimento comercial ou profissional, inclusivamente através:

i) Da constituição, aquisição ou manutenção de uma pessoa colectiva; ou

ii) Da criação ou manutenção de uma sucursal ou de uma representação;

no território de um Membro com vista à prestação de um serviço;

e) Entende-se por «sector» de um serviço:

i) Relativamente a um compromisso específico, um ou mais, ou todos, os subsectores desse serviço, conforme especificado na lista de um Membro;

ii) Nos restantes casos, o conjunto desse sector de serviços, incluindo todos os seus subsectores;

f) Entende-se por «serviço de outro Membro» um serviço prestado:

i) A partir ou no território desse outro Membro ou, no caso do transporte marítimo, por um navio registado nos termos da legislação desse outro Membro, ou por uma pessoa desse outro Membro que preste o serviço por meio da exploração de um navio e ou da sua utilização, na totalidade ou em parte; ou

ii) No caso da prestação de um serviço através da presença comercial ou da presença de pessoas singulares, por um prestador de serviços desse outro Membro;

g) Entende-se por «prestador de serviços» qualquer pessoa que preste um serviço (ver nota 12);

h) Entende-se por «prestador de um serviço em regime de monopólio» qualquer pessoa, pública ou privada, que seja autorizada ou estabelecida por um Membro, formalmente ou na prática, como o prestador exclusivo desse serviço no mercado relevante do território desse Membro;

i) Entende-se por «consumidor de serviços» qualquer pessoa que seja destinatária ou utilize um serviço;

j) Entende-se por «pessoa» qualquer pessoa singular ou colectiva;

k) Entende-se por «pessoa singular de outro Membro» uma pessoa singular residente no território desse outro Membro ou de qualquer outro Membro que, nos termos da legislação desse outro Membro:

i) Seja considerada como nacional desse outro Membro; ou

ii) Tenha o direito de residência permanente nesse outro Membro, no caso de um Membro que:

1) Não tenha nacionais; ou

2) Conceda aos seus residentes permanentes basicamente o mesmo tratamento que aos seus nacionais relativamente a medidas que afectem o comércio de serviços, conforme notificado na sua aceitação ou adesão ao Acordo OMC, desde que nenhum Membro seja obrigado a conceder a esses residentes permanentes um tratamento mais favorável do que o que seria concedido por esse outro Membro a esses residentes permanentes. A referida notificação incluirá a garantia de assumir, relativamente a esses residentes permanentes e de acordo com a sua legislação e regulamentação, as mesmas responsabilidades que esse outro Membro tem relativamente aos seus nacionais;

l) Entende-se por «pessoa colectiva» qualquer entidade jurídica devidamente constituída ou organizada de outra forma nos termos da legislação aplicável, quer tenha fins lucrativos ou não e quer seja propriedade privada ou do Estado, incluindo qualquer sociedade de capitais, sociedade gestora de patrimónios, sociedade de pessoas, empresa comum, sociedade em nome individual ou associação;

m) Entende-se por «pessoa colectiva de outro Membro» uma pessoa colectiva:

i) Que seja constituída ou organizada de outra forma nos termos da legislação desse outro Membro e que desenvolva um volume significativo de operações comerciais no território desse Membro ou de qualquer outro Membro; ou

ii) No caso da prestação de um serviço através da presença comercial, que seja propriedade ou seja controlada:

1) Por pessoas singulares desse Membro; ou

2) Por pessoas colectivas desse outro Membro definidas nos termos da subalínea i);

n) Uma pessoa colectiva:

i) «É propriedade» de pessoas de um Membro se mais de 50% do seu capital social for efectivamente detido por pessoas desse Membro;

ii) «É controlada» por pessoas de um Membro se essas pessoas estiveram habilitadas a nomear a maioria dos membros dos órgãos de administração ou tiveram poderes legais para de qualquer outra forma dirigir as suas operações;

iii) «É associada» a outra pessoa quando controle ou seja controlada por essa outra pessoa, ou quando ela própria e a outra pessoa sejam ambas controladas pela mesma pessoa;

o) Os «impostos directos» abrangem todos os impostos sobre o rendimento global, sobre o capital global ou sobre elementos do rendimento ou elementos do capital, incluindo os impostos sobre lucros resultantes da alienação de imóveis, os impostos sobre o património, as sucessões e as doações e os impostos sobre os montantes globais de vencimentos e salários pagos pelas empresas, bem como os impostos sobre mais-valias.

(nota 12) Sempre que o serviço não seja prestado directamente por uma pessoa colectiva, mas através de outras formas de presença comercial, tais como uma sucursal ou uma representação, o prestador de serviços (ou seja, a pessoa colectiva) beneficiará, no entanto, em virtude dessa presença, do tratamento previsto para os prestadores de serviços ao abrigo do presente Acordo. Esse tratamento será concedido à presença através da qual o serviço é prestado, não devendo necessariamente ser alargado a quaisquer outras unidades do prestador situadas fora do território em que o serviço é prestado.

Artigo XXIX

Anexos

Os anexos do presente Acordo constituem uma parte integrante do mesmo.

ANEXO RELATIVO ÀS ISENÇÕES DAS OBRIGAÇÕES PREVISTAS NO ARTIGO II

Âmbito de aplicação

1 - O presente anexo define as condições em que um Membro, no momento da entrada em vigor do presente Acordo, fica isento das suas obrigações nos termos do n.º 1 do artigo II.

2 - Todas as novas isenções requeridas após a data de entrada em vigor do Acordo OMC serão tratadas nos termos do n.º 3 do artigo IX desse Acordo.

Revisão

3 - O Conselho do Comércio de Serviços procederá à revisão de todas as isenções concedidas por um período superior a 5 anos. A primeira dessas revisões ocorrerá o mais tardar 5 anos após a entrada em vigor do Acordo OMC.

4 - Aquando de uma revisão, o Conselho do Comércio de Serviços:

a) Examinará se as condições que estiveram na origem da isenção ainda se mantêm; e

b) Determinará a data de uma eventual nova revisão.

Termo

5 - A isenção das obrigações nos termos do n.º 1 do artigo II do Acordo concedida a um Membro relativamente a determinada medida terminará na data prevista na respectiva isenção.

6 - Em princípio, essas isenções não deverão exceder um período de 10 anos. De qualquer forma, serão objecto de negociação em rondas subsequentes com vista à liberalização do comércio.

7 - Um Membro notificará o Conselho do Comércio de Serviços, no termo do período de isenção, de que a medida incompatível foi adaptada de modo a conformar-se com o disposto no n.º 1 do artigo II do Acordo.

Listas de isenções das obrigações previstas no artigo II

[As listas de isenções das obrigações previstas no n.º 2 do artigo II acordadas serão incluídas neste Anexo no exemplar de tratado do Acordo OMC.]

ANEXO RELATIVO À CIRCULAÇÃO DE PESSOAS SINGULARES QUE PRESTAM SERVIÇOS AO ABRIGO DO ACORDO

1 - O presente Anexo é aplicável às medidas que afectem as pessoas singulares que sejam prestadores de serviços de um Membro e as pessoas singulares de um Membro que sejam contratadas por um prestador de serviços de um Membro, no que diz respeito à prestação de um serviço.

2 - O Acordo não é aplicável às medidas que afectem as pessoas singulares que pretendam ter acesso ao mercado de trabalho de um Membro, nem às medidas referentes à cidadania, à residência ou ao emprego numa base permanente.

3 - De acordo com o disposto nas partes III e IV do Acordo, os Membros podem negociar compromissos específicos aplicáveis à circulação de todas as categorias de pessoas singulares que prestem serviços ao abrigo do Acordo. As pessoas singulares abrangidas por um compromisso específico serão autorizados a prestar o serviço de acordo com o estipulado nesse compromisso.

4 - O Acordo não impede que um Membro aplique medidas para regulamentar a admissão ou a permanência temporária de pessoas singulares no seu território, incluindo as medidas necessárias para proteger a integridade das suas fronteiras e para assegurar que a transposição das fronteiras por parte das pessoas singulares se processe de forma ordenada, desde que essas medidas não sejam aplicadas de modo a anular ou comprometer os benefícios que advêm para qualquer Membro nos termos de um compromisso específico (ver nota 1).

(nota 1) O simples facto de exigir um visto a pessoas singulares de certos Membros e não às de outros não será considerado como uma medida que anula ou compromete os benefícios ao abrigo de um compromisso específico.

ANEXO RELATIVO AOS SERVIÇOS DE TRANSPORTE AÉREO

1 - O presente Anexo é aplicável às medidas que afectem o comércio de serviços de transporte aéreo, regulares ou não, e de serviços acessórios. Confirma-se que nenhum compromisso específico ou obrigação assumidos nos termos do presente Acordo reduzirá ou afectará as obrigações de um Membro ao abrigo de acordos bilaterais ou multilaterais em vigor na data de entrada em vigor do Acordo OMC.

2 - O Acordo, incluindo os respectivos processos de resolução de litígios, não é aplicável às medidas que afectem:

a) Os direitos de tráfego, seja qual for a sua forma de atribuição; ou

b) Os serviços directamente relacionados com o exercício dos direitos de tráfego, com excepção do previsto no n.º 3 do presente Anexo.

3 - O Acordo é aplicável às medidas que afectem:

a) Os serviços de reparação e manutenção de aeronaves;

b) A venda e comercialização de serviços de transporte aéreo;

c) Os serviços de sistema informatizados de reserva (SIR).

4 - Os processos de resolução de litígios previstos no Acordo só poderão ser invocados no caso de os Membros em questão terem assumido obrigações ou compromissos específicos e caso tenham sido esgotadas as possibilidades de resolução dos litígios através de acordos ou convénios bilaterais ou multilaterais.

5 - O Conselho do Comércio de Serviços procederá periodicamente, e pelo menos de cinco em cinco anos, à análise da evolução registada no sector do transporte aéreo e da aplicação do presente Anexo, com vista a considerar a possibilidade de alargamento da aplicação do Acordo neste sector.

6 - Definições:

a) Entende-se por «serviços de reparação e manutenção de aeronaves» essas actividades quando executadas numa aeronave ou numa parte de uma aeronave que se encontre fora de serviço, não incluindo a chamada manutenção em linha;

b) Entende-se por «venda e comercialização de serviços de transporte aéreo» as possibilidades de que a transportadora aérea em questão dispõe para vender e comercializar livremente os seus serviços de transporte aéreo, incluindo todos os aspectos da comercialização, como os estudos de mercado, a publicidade e a distribuição. Essas actividades não incluem a tarifação dos serviços de transporte aéreo nem as condições aplicáveis;

c) Entende-se por «serviços de sistemas informatizados de reserva (SIR)» os serviços fornecidos por sistemas informáticos, que incluem informações sobre os horários das transportadoras aéreas, a disponibilidade de lugares, as tarifas e as regras de tarifação, através dos quais podem ser efectuadas reservas ou ser emitidos bilhetes;

d) Entende-se por «direitos de tráfego» o direito de operar serviços regulares e não regulares, abrangendo o transporte de passageiros, carga e correio contra remuneração ou mediante locação, a partir de, em direcção a, no interior de ou sobre o território de um Membro, incluindo os pontos a servir, as rotas a operar, os tipos de tráfego a efectuar, a capacidade a fornecer, as tarifas a aplicar e respectivas condições e os critérios de designação das companhias aéreas, incluindo critérios como o número, a propriedade e o controlo.

ANEXO RELATIVO AOS SERVIÇOS FINANCEIROS

1 - Âmbito de aplicação e definição

a) O presente Anexo é aplicável às medidas que afectem a prestação de serviços financeiros. Para efeitos do presente Anexo, entende-se por prestação de um serviço financeiro a prestação de um serviço conforme definido no n.º 2 do artigo I do Acordo.

b) Para efeitos do disposto no n.º 3, alínea b), do artigo I do Acordo, entende-se por «serviços prestados no exercício da autoridade do Estado» o seguinte:

i) As actividades desenvolvidas por um banco central ou uma autoridade monetária, ou por qualquer outra entidade pública, na condução da política monetária ou cambial;

ii) Actividades integradas num sistema de segurança social instituído por lei ou em planos de pensões de reforma públicos; e

iii) Outras actividades desenvolvidas por uma entidade pública por conta ou com a garantia do Estado, ou utilizando os recursos financeiros do Estado.

c) Para efeitos do disposto no n.º 3, alínea b), do artigo I do Acordo, se um Membro autorizar que qualquer das actividades referidas nas subalíneas ii) e iii) da alínea b) do presente número seja desenvolvida pelos seus prestadores de serviços financeiros em concorrência com uma entidade pública ou um prestador de serviços financeiros, a designação «serviços» abrangerá essas actividades.

d) O disposto no n.º 3, alínea c), do artigo I do Acordo não é aplicável aos serviços abrangidos pelo presente Anexo.

2 - Regulamentação interna

a) Não obstante quaisquer outras disposições do Acordo, um Membro não será impedido de tomar medidas por razões prudenciais, nomeadamente para a protecção dos investidores, dos depositantes, dos tomadores de seguros ou das pessoas em relação às quais um prestador de serviços financeiros tem um dever fiduciário, ou para garantir a integridade e estabilidade do sistema financeiro. Caso essas medidas não sejam conformes com o disposto no Acordo, não serão utilizadas como meio de iludir os compromissos ou obrigações do Membro ao abrigo do Acordo.

b) Nenhuma disposição do Acordo poderá ser interpretada no sentido de exigir que um Membro divulgue informações relativas à actividade e contas dos clientes ou qualquer informação confidencial ou privativa na posse de entidades públicas.

3 - Reconhecimento

a) Um Membro poderá reconhecer as medidas de carácter prudencial de qualquer outro país para determinar o modo como serão aplicadas as medidas do Membro relativas aos serviços financeiros. Esse reconhecimento, que poderá processar-se através de harmonização ou por qualquer outra forma, poderá basear-se num acordo ou convénio com o país em causa ou ser concedido de forma autónoma.

b) Um Membro que seja parte num acordo ou convénio do tipo referido na alínea a), futuro ou existente, facultará aos outros Membros interessados a possibilidade de negociarem a sua adesão a esses acordos ou convénios, ou de negociarem com ele acordos ou convénios comparáveis, em circunstâncias em que haja equivalência a nível da regulamentação, acompanhamento, implementação dessa regulamentação e, eventualmente, dos procedimentos referentes ao intercâmbio de informações entre as partes no acordo ou convénio. Caso um Membro conceda o reconhecimento de forma autónoma, facultará a qualquer outro Membro a possibilidade de demonstrar a existência das circunstâncias relevantes.

c) Sempre que um Membro contemple a possibilidade de reconhecer as medidas de carácter prudencial de qualquer outro país, não será aplicável o disposto no n.º 4, alínea b), do artigo VII.

4 - Resolução de litígios

Os painéis constituídos para analisar os litígios relativos a questões prudenciais e outras questões financeiras terão a especialização necessária em relação ao serviço financeiro específico objecto de litígio.

5 - Definições

Para efeitos do disposto no presente Anexo:

a) Entende-se por «serviço financeiro» qualquer serviço de natureza financeira oferecido por um prestador de serviços financeiros de um Membro. Os serviços financeiros incluem todos os serviços de seguros e serviços conexos e todos os serviços bancários e outros serviços financeiros (excluindo os seguros). Os serviços financeiros incluem as seguintes actividades:

Serviços de seguros e serviços conexos:

i) Seguro directo (incluindo o co-seguro):

A) Vida;

B) Não vida;

ii) Resseguro e retrocessão;

iii) Intermediação de seguros, incluindo os corretores e agentes;

iv) Serviços auxiliares de seguros, incluindo os serviços de consultoria, cálculo actuarial, avaliação de riscos e regularização de sinistros;

Serviços bancários e outros serviços financeiros (excluindo os seguros):

v) Aceitação de depósitos e de outros fundos reembolsáveis da parte do público;

vi) Concessão de empréstimos de qualquer tipo, incluindo o crédito ao consumo, o crédito hipotecário, o factoring e o financiamento de transacções comerciais;

vii) Locação financeira;

viii) Todos os serviços de pagamento e de transferências monetárias, incluindo os cartões de crédito, os cartões privativos e os cartões de débito, os cheques de viagem e os cheques bancários;

ix) Garantias e compromissos;

x) Transacção por conta própria ou por conta de clientes, quer seja numa bolsa, num mercado de balcão ou por qualquer outra forma, de:

A) Instrumentos do mercado monetário (incluindo cheques, títulos a curto prazo, certificados de depósito);

B) Divisas;

C) Produtos derivados, incluindo futuros e opções e outros produtos;

D) Instrumentos de taxa de câmbio e de taxa de juro, incluindo produtos como os swaps e os acordos a prazo de taxa de câmbio e de juro;

E) Valores mobiliários transaccionáveis;

F) Outros instrumentos e activos financeiros transaccionáveis, incluindo metais preciosos;

xi) Participação em emissões de todo o tipo de valores mobiliários, incluindo a tomada firme e a colocação no mercado sem tomada firme (abertas ao público em geral ou privadas) e a prestação de serviços relacionados com essas emissões;

xii) Corretagem monetária;

xiii) Gestão de activos, incluindo a gestão de tesouraria ou de carteira, todas as formas de gestão de investimentos colectivos, gestão de fundos de pensões, serviços de guarda, de depositário e fiduciários;

xiv) Serviços de liquidação e compensação referentes a activos financeiros, incluindo valores mobiliários, produtos derivados e outros instrumentos transaccionáveis;

xv) Prestação e transferência de informações financeiras, processamento de dados financeiros e fornecimento de programas informáticos conexos, realizados por prestadores de outros serviços financeiros;

xvi) Serviços de consultoria, de intermediação e outros serviços financeiros auxiliares referentes a todas as actividades enumeradas nas subalíneas v) a xv), incluindo referências bancárias e análise de crédito, estudos e consultoria em matéria de investimentos e carteira, consultoria em matéria de aquisições e de reestruturação e estratégia de empresas.

b) Entende-se por «prestador de serviços financeiros» qualquer pessoa singular ou colectiva de um Membro que pretenda prestar ou que preste serviços financeiros, não abrangendo a expressão «prestador de serviços financeiros» as entidades públicas.

c) Entende-se por «entidade pública»:

i) A administração pública, um banco central ou uma autoridade monetária de um Membro, ou uma entidade que seja propriedade ou seja controlada por um Membro, cuja principal actividade consista no exercício de funções públicas ou de actividades com finalidade pública, não incluindo uma entidade cuja principal actividade consista na prestação de serviços financeiros numa perspectiva comercial;

ii) Uma entidade privada que exerça funções normalmente desempenhadas por um banco central ou uma autoridade monetária quando no exercício dessas funções.

SEGUNDO ANEXO RELATIVO AOS SERVIÇOS FINANCEIROS

1 - Não obstante o disposto no artigo II do Acordo e nos n.os 1 e 2 do Anexo relativo às isenções das obrigações previstas no artigo II, um Membro poderá, durante um período de 60 dias com início quatro meses após a data de entrada em vigor do Acordo OMC, inscrever nesse anexo as medidas relativas aos serviços financeiros que sejam incompatíveis com o disposto no n.º 1 do artigo II do Acordo.

2 - Não obstante o disposto no artigo XXI do Acordo, um Membro poderá, durante um período de 60 dias com início quatro meses após a data de entrada em vigor do Acordo OMC, melhorar, alterar ou retirar a totalidade ou parte dos compromissos específicos em matéria de serviços financeiros inscritos na sua lista.

3 - O Conselho do Comércio de Serviços estabelecerá os procedimentos necessários para aplicação dos n.os 1 e 2.

ANEXO RELATIVO ÀS NEGOCIAÇÕES SOBRE SERVIÇOS DE TRANSPORTE MARÍTIMO

1 - O artigo II e o Anexo relativo às isenções das obrigações previstos no artigo II, incluindo a exigência de inscrever no Anexo qualquer medida incompatível com o princípio do tratamento da nação mais favorecida que um Membro pretenda manter, só entrarão em vigor, no que diz respeito ao transporte marítimo internacional, aos serviços acessórios e ao acesso e utilização de instalações portuárias:

a) Na data de implementação a definir dos termos do n.º 4 da Decisão Ministerial relativa às negociações sobre serviços de transporte marítimo; ou

b) Caso as negociações não sejam bem sucedidas, na data do relatório final do grupo de negociação sobre serviços de transporte marítimo previsto nessa decisão.

2 - O disposto no n.º 1 não será aplicável em relação a qualquer compromisso específico em matéria de serviços de transporte marítimo que seja inscrito na lista de um Membro.

3 - A partir da conclusão das negociações referidas no n.º 1 e antes da data de implementação, um Membro poderá melhorar, alterar ou retirar a totalidade ou parte dos seus compromissos específicos neste sector sem proceder a qualquer compensação, não obstante o disposto no artigo XXI.

ANEXO RELATIVO ÀS TELECOMUNICAÇÕES

1 - Objectivos

Reconhecendo as especificidades do sector dos serviços de telecomunicações, e nomeadamente o seu duplo papel enquanto sector de actividade económica distinto e enquanto meio de suporte fundamental para outras actividades económicas, os Membros acordaram no estabelecimento do presente Anexo com o objectivo de desenvolver as disposições do Acordo no que diz respeito às medidas que afectem o acesso e a utilização das redes e serviços públicos de transporte de telecomunicações. Consequentemente, o presente Anexo inclui notas e disposições suplementares em relação ao Acordo.

2 - Âmbito de aplicação

a) O presente Anexo é aplicável a todas as medidas de um Membro que afectem o acesso e a utilização de redes e serviços públicos de transporte de telecomunicações (ver nota 1).

b) O presente Anexo não é aplicável às medidas que afectem a distribuição por cabo ou difusão de programas radiofónicos ou televisivos.

c) Nenhuma disposição do presente Anexo poderá ser interpretada no sentido de:

i) Exigir que um Membro autorize um prestador de serviços de qualquer outro Membro a implantar, construir, adquirir, alugar, explorar ou fornecer redes ou serviços de transporte de telecomunicações, salvo conforme previsto na sua lista; ou

ii) Exigir que um Membro implante, construa, adquira, alugue, explore ou forneça redes ou serviços de transporte de telecomunicações que não sejam postos à disposição do público em geral (ou exigir que um Membro imponha essa obrigatoriedade aos prestações de serviços sob a sua jurisdição).

3 - Definições

Para efeitos do disposto no presente Anexo:

a) Entende-se por «telecomunicações» a transmissão e recepção de sinais por qualquer meio electromagnético.

b) Entende-se por «serviço público de transporte de telecomunicações» qualquer serviço de transporte de telecomunicações que um Membro exija, expressamente ou de facto, que seja posto à disposição do público em geral. Esses serviços poderão incluir, inter alia, os serviços de telégrafo, telefone, telex e de transmissão de dados que impliquem geralmente a transmissão em tempo real de informações fornecidas pelo cliente entre dois ou mais pontos, sem que haja qualquer alteração de extremo a extremo a nível da forma ou conteúdo da informação do cliente.

c) Entende-se por «rede pública de transporte de telecomunicações» a infra-estrutura pública de telecomunicações que permite as telecomunicações entre pontos terminais definidos da rede.

d) Entende-se por «comunicações internas das empresas» as telecomunicações que se estabelecem dentro da empresa, entre a empresa e as suas filiais, sucursais e, sob reserva das legislações e regulamentações internas de um Membro, as empresas associadas, ou entre essas filiais, sucursais ou empresas associadas. Para efeitos do disposto na presente alínea, considerar-se-ão «filiais», «sucursais» e, se for caso disso, «empresas associadas» aquelas que forem definidas como tal por cada Membro. Para efeitos do disposto no presente Anexo, a expressão «comunicações internas das empresas» não abrange os serviços comerciais ou não comerciais fornecidos a empresas que não sejam filiais, sucursais ou empresas associadas pertencentes ao mesmo grupo, ou oferecidos a clientes ou a potenciais clientes.

e) Qualquer referência a um número ou alínea do presente Anexo inclui todas as suas subdivisões.

4 - Transparência

Para aplicação do disposto no artigo III do Acordo, cada Membro velará por que as informações pertinentes sobre as condições que afectam o acesso e a utilização das redes e serviços públicos de transporte de telecomunicações sejam postas à disposição do público, incluindo: tarifas e outras condições do serviço, especificações das interfaces técnicas com essas redes e serviços, informações sobre os organismos responsáveis pela elaboração e adopção de normas que afectem esse acesso e utilização, condições aplicáveis à ligação de terminais ou outros equipamentos e, eventualmente, requisitos em matéria de notificação, registo ou licenciamento.

5 - Acesso e utilização de redes e serviços públicos

de transporte de telecomunicações

a) Cada Membro velará por que qualquer prestador de serviços de qualquer outro Membro possa ter acesso e utilizar as redes e serviços públicos de transporte de telecomunicações em condições razoáveis e não discriminatórias, para efeitos da prestação de um serviço incluído na sua lista. Esta obrigação será aplicada, inter alia, através do disposto nas alíneas b) a f) (ver nota 2).

b) Cada Membro velará por que os prestadores de serviços de qualquer outro Membro possam ter acesso e utilizar qualquer rede ou serviço público de transporte de telecomunicações oferecido no interior do seu território ou para além das fronteiras desse Membro, incluindo os circuitos alugados privados, assegurando para esse efeito, sob reserva do disposto nas alíneas e) e f), que esses prestadores de serviços sejam autorizados:

i) A adquirir ou alugar e a ligar terminais ou outros equipamentos que assegurem uma interface com a rede e que sejam necessários para a respectiva prestação de serviços;

ii) A proceder à interconexão de circuitos privados, alugados ou próprios, com as redes e serviços públicos de transporte de telecomunicações ou com circuitos alugados ou próprios de outro prestador de serviços; e

iii) A utilizar protocolos de exploração de sua escolha para a prestação de qualquer serviço, com excepção dos necessários para garantir a existência de redes e serviços de transporte de telecomunicações à disposição do público em geral.

c) Cada Membro velará por que os prestadores de serviços de qualquer outro Membro possam utilizar as redes e serviços públicos de transporte de telecomunicações para a transmissão de informações no interior do seu território e para além das suas fronteiras, incluindo as comunicações internas das empresas desses prestadores de serviços e para acesso a informações contidas em bases de dados ou armazenadas sob qualquer outra forma num suporte legível por máquina no território de qualquer Membro. Qualquer medida nova ou alterada de um Membro que afecte significativamente a referida utilização será notificada e objecto de consultas, em conformidade com as disposições relevantes do Acordo.

d) Não obstante o disposto na alínea anterior, um Membro poderá tomar as medidas necessárias para garantir a segurança e confidencialidade das mensagens, na condição de essas medidas não serem aplicadas de um modo que constitua um meio de discriminação arbitrária ou injustificável, ou uma restrição dissimulada ao comércio de serviços.

e) Cada Membro velará por que o acesso e utilização de redes e serviços públicos de transporte de telecomunicações não sejam subordinados a quaisquer condições, para além das necessárias:

i) Para salvaguardar as responsabilidades de serviço público dos fornecedores de redes e serviços públicos de transporte de telecomunicações, nomeadamente a sua capacidade para pôr as suas redes ou serviços à disposição do público em geral;

ii) Para proteger a integridade técnica das redes ou serviços públicos de transporte de telecomunicações; ou

iii) Para garantir que os prestadores de serviços de qualquer outro Membro apenas prestem serviços se a tal estiverem autorizados nos termos dos compromissos incluídos na lista do Membro em causa.

f) Na condição de satisfazerem os critérios definidos na alínea e), as condições de acesso e utilização das redes e serviços públicos de transporte de telecomunicações poderão incluir:

i) Restrições à revenda ou utilização partilhada desses serviços;

ii) A exigência de utilizar interfaces técnicas especificadas, incluindo protocolos de interfaces, para a interconexão com essas redes e serviços;

iii) Caso necessário, exigências para garantir a interoperabilidade desses serviços e para incentivar a realização dos objectivos definidos na alínea a) do n.º 7;

iv) A aprovação de tipo de terminais ou outros equipamentos que assegurem uma interface com a rede, e requisitos técnicos relativamente à ligação desse equipamento a essas redes;

v) Restrições à interconexão de circuitos privados, alugados ou próprios, com essas redes ou serviços ou com circuitos alugados ou próprios de outro prestador de serviços; ou

vi) A notificação, registo e licenciamento.

g) Não obstante o disposto nos números anteriores da presente secção, um país em desenvolvimento Membro poderá, em conformidade com o seu nível de desenvolvimento, subordinar o acesso e utilização de redes e serviços públicos de transporte de telecomunicações a condições razoáveis necessárias para o reforço da sua infra-estrutura e capacidade de prestação de serviços interna do domínio das telecomunicações e para aumentar a sua participação no comércio internacional e serviços de telecomunicações. Essas condições serão definidas na lista do Membro em causa.

6 - Cooperação técnica

a) Os Membros reconhecem que a existência de uma infra-estrutura de telecomunicações eficaz e avançada nos vários países, essencialmente nos países em desenvolvimento, é essencial para a expansão do seu comércio de serviços. Nesta perspectiva, os Membros aprovam e incentivam a máxima participação possível dos países desenvolvidos e em desenvolvimento e dos respectivos fornecedores de redes e serviços públicos de transporte de telecomunicações, bem como de outras entidades, nos programas de desenvolvimento de organizações internacionais e regionais, como a União Internacional de Telecomunicações, o Programa das Nações Unidas para o Desenvolvimento e o Banco Internacional de Reconstrução e Desenvolvimento.

b) Os Membros incentivarão e apoiarão a cooperação no domínio das telecomunicações entre os países em desenvolvimento a nível internacional, regional e sub-regional.

c) Em cooperação com organizações internacionais competentes, os Membros porão à disposição dos países em desenvolvimento, na medida do possível, informações relativas aos serviços de telecomunicações e à evolução no domínio das telecomunicações e da tecnologia da informação, a fim de contribuir para o reforço dos respectivos serviços de telecomunicações nacionais.

d) Os Membros darão especial atenção às oportunidades que se ofereçam aos países menos desenvolvidos para incentivar a assistência dos prestadores de serviços de telecomunicações estrangeiros a nível da transferência de tecnologia, da formação e de outras actividades que apoiem o desenvolvimento das respectivas infra-estruturas de telecomunicações e a expansão do seu comércio de serviços de telecomunicações.

7 - Relações com organizações e acordos internacionais

a) Os Membros reconhecem a importância das normas internacionais para a compatibilidade e interoperabilidade global das redes e serviços de telecomunicações e comprometem-se a promover a elaboração dessas normas no quadro dos trabalhos dos organismos internacionais competentes, incluindo a União Internacional de Telecomunicações e a Organização Internacional de Normalização.

b) Os Membros reconhecem o papel desempenhado pelas organizações e acordos intergovernamentais e não governamentais no sentido de assegurar o bom funcionamento dos serviços de telecomunicações de âmbito nacional e global, e em especial o papel da União Internacional de Telecomunicações. Sempre que tal se justifique, os Membros tomarão disposições adequadas para proceder a consultas com essas organizações sobre questões decorrentes da implementação do presente Anexo.

(nota 1) Entende-se do disposto neste número que cada membro assegurará, através das medidas necessárias, que as obrigações previstas no presente Anexo sejam aplicadas em relação aos fornecedores de redes e serviços públicos de transporte de telecomunicações.

(nota 2) A expressão «não discriminatórias» refere-se ao tratamento na nação mais favorecida e ao tratamento nacional conforme definidos no Acordo, reflectindo igualmente a utilização desse termo específica no sector, no sentido de «condições não menos favoráveis do que as concedidas a qualquer outro utilizador de redes ou serviços públicos de transporte de telecomunicações idênticos nas mesmas circunstâncias».

ANEXO RELATIVO ÀS NEGOCIAÇÕES SOBRE TELECOMUNICAÇÕES DE BASE

1 - O artigo II e o Anexo relativo às isenções das obrigações previstas no artigo II, incluindo a exigência de enumerar no Anexo qualquer medida incompatível com o princípio do tratamento da nação mais favorecida que um Membro pretenda manter, apenas entrarão em vigor, no que se refere às telecomunicações de base:

a) Na data de implementação a definir nos termos do n.º 4 da Decisão Ministerial relativa às negociações sobre telecomunicações de base; ou

b) Caso as negociações não sejam bem sucedidas, na data do relatório final do grupo de negociação sobre telecomunicações de base previsto nessa decisão.

2 - O disposto no n.º 1 não será aplicável em relação a qualquer compromisso específico em matéria de telecomunicações de base que seja inscrito na lista de um Membro.

ANEXO

1 - A lista de «compromissos iniciais» a seguir apresentada deve ser incluída em anexo ao Acordo:

LISTA DE COMPROMISSOS ESPECÍFICOS

A seguir indicam-se os documentos que contêm as listas de compromissos específicos resultantes das negociações sobre o comércio de serviços durante o Uruguay Round:

Argélia - MTN.GNS/W/257;

Antígua e Barbuda - MTN.GNS/W/217;

Antilhas Neerlandesas - MTN.GNS/W/161/Add.1;

Argentina - MTN.GNS/W/125/Rev. 4;

Aruba (Países Baixos) - MTN.GNS/W/159;

Austrália - MTN.TNC/W/51/Rev. 3/Corr. 2;

Áustria - MTN.TNC/W/66/Rev. 2/Add.1;

Bangladesh - MTN.GNS/W/202;

Barbados - MTN.GNS/W/167;

Belize - MTN.GNS/W/203;

Benim - MTN.GNS/W/187;

Bolívia - MTN.GNS/W/147;

Brasil - MTN.GNS/W/116/Rev. 2/Add. 1;

Burquina Faso - MTN.GNS/W/165;

Camarões - MTN.GNS/W/155/Rev. 1;

Canadá - MTN.TNC/W/55/Rev. 4;

Chile - MTN.GNS/W/115/Rev. 3;

China - MTN.GNS/W/124/Rev. 3/Add. 1;

Colômbia - MTN.TNC/W/67/Rev. 4;

Congo - MTN.GNS/W/268;

Costa Rica - MTN.GNS/W/127/Add. 1/Rev. 1;

Costa do Marfim - MTN.GNS/W/153/Rev. 1;

Cuba - MTN.GNS/W/143/Add. 1/Add. 2/Corr. 1;

Chipre - MTN.GNS/W/175/Rev. 1/Corr. 1;

República Checa - MTN.GNS/W/168/Rev. 1/Add. 1;

República Dominicana - MTN.GNS/W/173;

El Salvador - MTN.GNS/W/216;

Egipto - MTN.GNS/W/137/Rev. 2;

Comunidade Europeia e seus Estados membros -MTN.TNC/W/53/Rev. 5;

Fiji - MTN.GNS/W/252;

Finlândia - MTN.TNC/W/62/Rev. 4/Add. 1;

Gabão - MTN.GNS/W/229;

Gana - MTN.GNS/W/157/Rev. 2;

Guatemala - MTN.GNS/W/245;

Guiana - MTN.GNS/W/246;

Honduras - MTN.GNS/W/192/Rev. 1;

Hong-Kong - MTN.TNC/W/54/Rev. 3;

Hungria - MTN.GNS/W/133/Rev. 2/Add. 2;

Islândia - MTN.TNC/W/74/Rev. 4;

Índia - MTN.GNS/W/144/Rev. 2;

Indonésia - MTN.TNC/W/64/Rev. 2/Add. 1;

Israel - MTN.GNS/W/154/Rev. 1;

Jamaica - MTN.GNS/W/149/Corr. 1;

Japão - MTN.GNS/W/113/Rev. 6/Add. 1;

República da Coreia - MTN.TNC/W/61/Rev. 4;

Macau - MTN.GNS/W/171/Rev. 1;

Madagáscar - MTN.GNS/W/174;

Malásia - MTN.GNS/W/122/Rev. 4;

Malta - MTN.TNC/W/221;

Maurícia - MTN.TNC/W/172;

México - MTN.TNC/W/71/Rev. 3/Corr. 1;

Marrocos - MTN.GNS/W/141/Rev. 2;

Moçambique - MTN.GNS/W/233;

Mianmar - MTN.GNS/W/162/Rev. 1;

Namíbia - MTN.GNS/W/179;

Nova Caledónia (França) - MTN.GNS/W/270;

Nova Zelândia - MTN.TNC/W/58/Rev. 3/Corr. 1/Add. 1;

Nicarágua - MTN.GNS/W/222;

Níger - MTN.TNC/W/240;

Nigéria - MTN.GNS/W/150/Rev. 1;

Noruega - MTN.TNC/W/63/Add. 1/Rev. 5;

Paquistão - MTN.TNC/W/170/Rev. 1;

Paraguai - MTN.GNS/W/152/Rev. 1;

Peru - MTN.GNS/W/129/Rev. 2;

Filipinas - MTN.GNS/W/131/Rev. 3;

Polónia - MTN.GNS/W/126/Rev. 3;

Roménia - MTN.TNC/W/78/Add. 1/Rev. 4;

Santa Lúcia - MTN.GNS/W/204;

São Vicente e Granadinas - MTN.GNS/W/200;

Senegal - MTN.TNC/W/151/Rev. 1;

Singapura - MTN.GNS/W/65/Rev. 4;

República Eslovaca - MTN.TNC/W/169/Rev. 1/Add. 1;

África do Sul - MTN.GNS/W/136/Rev. 2/Add. 1;

Sri Lanka - MTN.GNS/W/148/Corr. 1;

Suriname - MTN.TNC/W/219;

Suazilândia - MTN.GNS/W/180/Rev. 1;

Suécia - MTN.TNC/W/59/Rev. 5/Corr. 1;

Suíça - MTN.GNS/W/109/Rev. 5/Add. 1;

Tanzânia - MTN.GNS/W/251;

Tailândia - MTN.GNS/W/132/Rev. 3;

Trindade e Tobago - MTN.TNC/W/160/Rev. 1;

Tunísia - MTN.GNS/W/158/Rev. 31;

Turquia - MTN.TNC/W/72/Rev. 2/Corr. 1/Add. 1;

Uganda - MTN.GNS/W/193;

Estados Unidos - MTN.GNS/W/11/Rev. 4;

Uruguai - MTN.GNS/W/128/Rev. 2;

Venezuela - MTN.GNS/W/123/Add. 1/Rev. 4;

Zâmbia - MTN.GNS/W/186;

Zimbabwe - MTN.GNS/W/156/Rev. 1.

2 - A lista de isenções do artigo II a seguir apresentada deve ser incluída no «Anexo sobre as isenções ao artigo II», p. 27 do Acordo.

ISENÇÕES AO ARTIGO II

A seguir indicam-se os documentos que contêm as listas de isenções ao artigo II resultantes das negociações sobre o comércio de serviços durante o Uruguay Round. Em conformidade com o n.º 2 do artigo II, esta lista deve ser incluída no Anexo sobre as isenções ao artigo II:

Argentina - MTN.GNS/W/264;

Austrália - MTN.GNS/W/189/Corr. 1;

Áustria - MTN.GNS/W/249/Add. 1;

Benim - MTN.GNS/W/263;

Bolívia - MTN.GNS/W/248;

Brasil - MTN.GNS/W/195/Add. 1;

Camarões - MTN.GNS/W/253;

Canadá - MTN.GNS/W/188/Add. 2/Corr. 1;

República Centro-Africana - MTN.GNS/W/233;

Chile - MTN.GNS/W/230;

China - MTN.GNS/W/208;

Colômbia - MTN.GNS/W/225/Add. 2;

Congo - MTN.GNS/W/269;

Costa Rica - MTN.GNS/W/255;

Costa do Marfim - MTN.GNS/W/256;

Cuba - MTN.GNS/W/272;

Chipre - MTN.GNS/W/237;

República Checa - MTN.GNS/W/207/Rev. 1;

El Salvador - MTN.GNS/W/215;

Egipto - MTN.GNS/W/220/Rev. 1;

Comunidade Europeia e seus Estados membros -MTN.GNS/W/228/Rev. 1;

Finlândia - MTN.GNS/W/191/Add. 1;

Gabão - MTN.GNS/W/231;

Gana - MTN.GNS/W/265;

Guatemala - MTN.GNS/W/241/Rev. 1;

Honduras - MTN.GNS/W/214;

Hong-Kong - MTN.GNS/W/192;

Hungria - MTN.GNS/W/226;

Islândia - MTN.GNS/W/209/Add. 1;

Índia - MTN.GNS/W/199/Rev. 1;

Indonésia - MTN.GNS/W/242;

Israel - MTN.GNS/W/236/Add. 1;

Jamaica - MTN.GNS/W/247;

República de Coreia - MTN.GNS/W/262;

Malásia - MTN.GNS/W/183/Rev. 3;

Mali - MTN.GNS/W/271;

Malta - MTN.GNS/W/267;

México - MTN.GNS/W/194/Add. 1;

Marrocos - MTN.GNS/W/261;

Nova Zelândia - MTN.GNS/W/185/Rev. 1;

Níger - MTN.GNS/W/232;

Nigéria - MTN.GNS/W/266;

Noruega - MTN.GNS/W/196/Add. 1;

Paquistão - MTN.GNS/W/250;

Peru - MTN.GNS/W/235;

Filipinas - MTN.GNS/W/201/Rev. 1;

Polónia - MTN.GNS/W/234/Rev. 1;

Roménia - MTN.GNS/W/244;

Senegal - MTN.GNS/W/213;

Singapura - MTN.GNS/W/206/Rev. 2;

República Eslovaca - MTN.GNS/W/205/Rev. 1;

África do Sul - MTN.GNS/W/218;

Suazilândia - MTN.GNS/W/238;

Suécia - MTN.GNS/W/198/Rev. 1;

Suíça - MTN.GNS/W/211/Rev. 2;

Tailândia - MTN.GNS/W/258;

Trindade e Tobago - MTN.GNS/W/212;

Tunísia - MTN.GNS/W/224;

Turquia - MTN.GNS/W/184/Rev. 1;

Estados Unidos - MTN.GNS/W/227/Rev. 1;

Uruguai - MTN.GNS/W/239/Rev. 1;

Venezuela - MTN.GNS/W/197/Rev. 1.

LISTA DE COMPROMISSOS ESPECÍFICOS

Comunidades Europeias e seus Estados membros

(só o texto em língua inglesa é que faz fé)

Nota introdutória

1 - Os compromissos específicos constantes da presente lista aplicam-se apenas aos territórios abrangidos pelos Tratados que instituem as Comunidades Europeias e nas condições estabelecidas nesses Tratados. Estes compromissos só são aplicáveis às relações entre as Comunidades e os seus Estados membros, por um lado, e os países não comunitários, por outro, não afectando os direitos e as obrigações dos Estados membros decorrentes do direito comunitário.

2 - Para indicar os Estados membros são utilizadas as seguintes abreviaturas:

B - Bélgica;

D - Alemanha;

DK - Dinamarca;

E - Espanha;

F - França;

GR - Grécia;

I - Itália;

IRL - Irlanda;

L - Luxemburgo;

NL - Países Baixos;

P - Portugal;

UK - Reino Unido.

3 - Os direitos e as obrigações decorrentes do GATS, incluindo a lista de compromissos, não têm efeito directo e, por conseguinte, não conferem automaticamente quaisquer direitos a pessoas singulares ou colectivas.

4 - Anexo à presente lista encontra-se um glossário dos termos utilizados por cada um dos Estados membros.

Comunidades Europeias e seus Estados membros - Lista de compromissos específicos

Modos de prestação:

1) Prestação transfronteiras;

2) Consumo no estrangeiro;

3) Presença comercial;

4) Presença de pessoas singulares.

(ver documento original)

ANEXO

Glossário

Termos utilizados relativamente aos Estados membros individuais

França:

SC - Société Civile (sociedade civil).

SCP - Société Civile Professionnelle (sociedade civil profissional).

SEL - Société d'Exercice Libéral (sociedade de actividade liberal).

SNC - Société en Nom Collectif (sociedade em nome colectivo).

SCS - Société en Commandite Simple (sociedade em comandita simples).

SARL - Société à Responsabilité Limitée (sociedade de responsabilidade limitada).

SCA - Société en Commandite par Actions (sociedade em comandita por acções).

SA - Société Anonyme (sociedade anónima).

N. B. - Todas estas sociedades são dotadas de personalidade jurídica.

Alemanha:

GmbH & CoKG - Kommanditgesellschaft, bei der der persönlich haftende Gesellschafter eine GmbH (sociedade anónima de responsabilidade limitada) ist.

EWIV - Europäische Wirtschaftliche Interessenvereinigung (Agrupamento Europeu de Interesse Económico).

Itália:

SPA - Società per Azioni (sociedade por acções).

SRL - Socetà a Responsabilità Limitata (sociedade de responsabilidade limitada).

No que se refere à Itália, estão abrangidos na oferta da CE os seguintes serviços profissionais:

Ragionierei-periti commerciali - Contabilista-auditor;

Commercialisti - Contabilista-auditor;

Geometri - Geómetras;

Ingegneri - Engenheiros;

Architetti - Arquitectos;

Geologi - Geólogos;

Medici - Médicos;

Farmacisti - Farmacêuticos;

Psicologi - Psicólogos;

Veterinari - Veterinários;

Biologi - Biólogos;

Chimici - Químicos;

Periti agrari - Especialistas agrários;

Agronomi - Agrónomos;

Attuari - Atuários.

LISTA FINAL DAS ISENÇÕES DAS OBRIGAÇÕES PREVISTAS NO ARTIGO II (NMF)

Comunidades Europeias e seus Estados Membros

(Só o texto em língua inglesa é que faz fé)

Comunidades Europeias e seus Estados membros - Lista final das isenções das obrigações previstas no artigo II (NMF)

(ver documento original)

ANEXO 1C

ACORDO SOBRE OS ASPECTOS DOS DIREITOS DE PROPRIEDADE INTELECTUAL RELACIONADOS COM O COMÉRCIO.

Os Membros:

Desejosos de reduzir as distorções e os entraves ao comércio internacional e tendo em conta a necessidade de promover uma protecção eficaz e adequada dos direitos de propriedade intelectual e de garantir que as medidas e processos destinados a assegurar a aplicação efectiva dos direitos de propriedade intelectual não constituam eles próprios obstáculos ao comércio legítimo;

Reconhecendo, para este efeito, a necessidade de elaboração de novas regras e disciplinas relativas:

a) À aplicabilidade dos princípios básicos do GATT de 1994 e dos acordos ou convenções internacionais relevantes em matéria de propriedade intelectual;

b) À definição de normas e princípios adequados relativos à existência, âmbito e exercício dos direitos de propriedade intelectual relacionados com o comércio;

c) Ao estabelecimento de meios eficazes e adequados destinados a assegurar a aplicação efectiva dos direitos de propriedade intelectual relacionados com o comércio, tendo em conta as diferenças entre os sistemas jurídicos nacionais;

d) Ao estabelecimento de processos eficazes e expeditos para a prevenção e resolução multilateral de litígios entre governos; e

e) Às disposições transitórias com vista à mais completa participação nos resultados das negociações;

Reconhecendo a necessidade de estabelecer um quadro multilateral de princípios, regras e disciplinas referentes ao comércio internacional de mercadorias de contrafacção;

Reconhecendo que os direitos de propriedade intelectual são direitos privados;

Reconhecendo os objectivos de política geral subjacentes aos sistemas nacionais de protecção da propriedade intelectual, incluindo objectivos em matéria de desenvolvimento e tecnologia;

Reconhecendo igualmente as necessidades especiais dos países menos desenvolvidos Membros no que se refere a um máximo de flexibilidade a nível da implementação das disposições legislativas e regulamentares no plano interno, para que esses países possam criar uma base tecnológica sólida e viável;

Salientando a importância da redução de tensões por meio de compromissos reforçados no sentido de resolver os litígios sobre questões de propriedade intelectual relacionadas com o comércio através de processos multilaterais;

Desejosos de estabelecer uma relação de mútuo apoio entre a OMC e a Organização Mundial para a Propriedade Intelectual (designada por «OMPI» no presente Acordo), bem como outras organizações internacionais intervenientes neste domínio;

acordam no seguinte:

PARTE I

Disposições gerais e princípios básicos

Artigo 1.º

Natureza e âmbito das obrigações

1 - Os Membros implementarão as disposições do presente Acordo. Os Membros podem, embora a tal não sejam obrigados, prever na sua legislação uma protecção mais vasta do que a prescrita no presente Acordo, desde que essa protecção não seja contrária às disposições do presente Acordo. Os Membros determinarão livremente o método adequado para a execução das disposições no presente Acordo, no quadro dos respectivos sistemas e práticas jurídicas.

2 - Para efeitos do disposto no presente Acordo, a expressão «propriedade intelectual» refere-se a todas as categorias da propriedade intelectual que constituem o objecto das secções 1 a 7 da parte II.

3 - Os Membros concederão o tratamento previsto no presente Acordo aos nacionais de outros Membros (ver nota 1). No que diz respeito ao direito de propriedade intelectual relevante, considerar-se-á como nacionais de outros Membros as pessoas singulares ou colectivas que, na eventualidade de todos os Membros da OMC serem membros dessas convenções, preencheriam os critérios de elegibilidade para protecção previstos na Convenção de Paris (1967), na Convenção de Berna (1971), na Convenção de Roma e no Tratado sobre a Protecção da Propriedade Intelectual Relativa aos Circuitos Integrados (ver nota 2). Qualquer Membro que pretenda prevalecer-se das possibilidades previstas no n.º 3 do artigo 5.º ou no n.º 2 do artigo 6.º da Convenção de Roma dirigirá uma notificação, conforme previsto nessas disposições, ao Conselho dos Aspectos dos Direitos de Propriedade Intelectual Relacionados com o Comércio (o «Conselho TRIPS»).

(nota 1) Sempre que no presente acordo seja feita referência a «nacionais», considerar-se-á que esse tempo abrange, no que diz respeito a um território aduaneiro distinto Membro da OMC, as pessoas, singulares ou colectivas, que estejam domiciliadas ou possuam um estabelecimento industrial ou comercial real e efectivo nesse território aduaneiro.

(nota 2) No presente Acordo, «Convenção de Paris» designa a Convenção de Paris para a Protecção da Propriedade Industrial, «Convenção de Paris (1967)» designa o Acto de Estocolmo desta Convenção, de 14 de Julho de 1967, «Convenção de Berna» designa a Convenção de Berna para a Protecção das Obras Literárias e Artísticas, «Convenção de Berna (1971)» designa o Acto de Paris desta Convenção, de 24 de Julho de 1971, «Convenção de Roma» designa a Convenção Internacional para a Protecção dos Artistas Intérpretes ou Executantes, dos Produtores de Fonogramas e dos Organismos de Radiodifusão, adoptada em Roma em 26 de Outubro de 1961, «Tratado sobre a Protecção da Propriedade Intelectual Relativo aos Circuitos Integrados» (Tratado IPIC) designa o Tratado sobre a Protecção da Propriedade Intelectual Relativa aos Circuitos Integrados, assinado em Washington em 26 de Maio de 1989, «Acordo OMC» designa o Acordo que cria a OMC.

Artigo 2.º

Convenções em matéria de propriedade intelectual

1 - No que diz respeito às partes II, III e IV do presente Acordo, os Membros devem observar o disposto nos artigos 1.º a 12.º e no artigo 19.º da Convenção de Paris (1967).

2 - Nenhuma das disposições incluídas nas partes I a IV do presente Acordo poderá constituir uma derrogação das obrigações que possam vincular os Membros entre si ao abrigo da Convenção de Paris, da Convenção de Berna, da Convenção de Roma e do Tratado sobre a Protecção da Propriedade Intelectual Relativa aos Circuitos Integrados.

Artigo 3.º

Tratamento nacional

1 - Cada Membro concederá aos nacionais de outros Membros um tratamento não menos favorável do que o que concede aos seus próprios nacionais no que se refere à protecção (ver nota 3) da propriedade intelectual, sem prejuízo das excepções já previstas, respectivamente na Convenção de Paris (1967), na Convenção de Berna (1971), na Convenção de Roma ou no Tratado sobre a Protecção da Propriedade Intelectual Relativa aos Circuitos Integrados. No que diz respeito aos artistas intérpretes ou executantes, aos produtores de fonogramas e aos organismos de radiodifusão, esta obrigação só é aplicável relativamente aos direitos previstos no presente Acordo. Qualquer Membro que pretenda prevalecer-se das possibilidades previstas no artigo 6.º da Convenção de Berna (1971) ou no n.º 1, alínea b), do artigo 16.º da Convenção de Roma deverá dirigir uma notificação, conforme previsto nessas disposições, ao Conselho TRIPS.

2 - Os Membros só poderão prevalecer-se das excepções autorizadas nos termos do n.º 1 relativamente aos processos judiciais e administrativos, incluindo a eleição de domicílio ou a designação de um mandatário sob a jurisdição de um Membro, no caso de essas excepções serem necessárias para garantir a observância de disposições legislativas e regulamentares que não sejam incompatíveis com o disposto no presente Acordo e no caso de essas práticas não serem aplicadas de modo a constituírem uma restrição dissimulada ao comércio.

(nota 3) Para efeitos do disposto nos artigos 3.º e 4.º, o termo «protecção» abrange as questões relativas à existência, aquisição, âmbito, manutenção e aplicação efectiva dos direitos de propriedade intelectual, bem como as questões relativas ao exercício dos direitos de propriedade intelectual, expressamente contempladas no presente Acordo.

Artigo 4.º

Tratamento da nação mais favorecida

No que diz respeito à protecção da propriedade intelectual, todas as vantagens, favores, privilégios ou imunidades concedidos por um Membro aos nacionais de qualquer outro país serão concedidos, imediata e incondicionalmente, aos nacionais de todos os outros Membros. Ficam isentos desta obrigação as vantagens, favores, privilégios ou imunidades concedidos por um Membro:

a) Decorrentes de acordos internacionais em matéria de assistência judicial ou de execução da legislação de carácter geral e que não se limitem concretamente à protecção da propriedade intelectual;

b) Em conformidade com as disposições da Convenção de Berna (1971) ou da Convenção de Roma, que autorizam que o tratamento concedido seja função, não do tratamento nacional, mas do tratamento concedido noutro país;

c) Relativamente aos direitos dos artistas intérpretes ou executantes, dos produtores de fonogramas e dos organismos de radiodifusão que não sejam previstos no presente Acordo;

d) Decorrentes de acordos internacionais relacionados com a protecção da propriedade intelectual que tenham entrado em vigor antes da entrada em vigor do Acordo OMC, desde que esses acordos sejam notificados ao Conselho TRIPS e não constituam uma discriminação arbitrária ou injustificada contra nacionais de outros Membros.

Artigo 5.º

Acordos multilaterais sobre aquisição ou manutenção da protecção

As obrigações decorrentes do disposto nos artigos 3.º e 4.º não são aplicáveis aos processos previstos em acordos multilaterais concluídos sob os auspícios da OMPI e relativos à aquisição ou manutenção de direitos de propriedade intelectual.

Artigo 6.º

Esgotamento

Para efeitos da resolução de litígios ao abrigo do presente Acordo, e sem prejuízo do disposto nos artigos 3.º e 4.º, nenhuma disposição do presente Acordo será utilizada para tratar a questão do esgotamento dos direitos de propriedade intelectual.

Artigo 7.º

Objectivos

A protecção e a aplicação efectiva dos direitos de propriedade intelectual devem contribuir para a promoção da inovação tecnológica e para a transferência e divulgação de tecnologia, em benefício mútuo dos geradores e utilizadores dos conhecimentos tecnológicos e de um modo conducente ao bem-estar social e económico, bem como para um equilíbrio entre direitos e obrigações.

Artigo 8.º

Princípios

1 - Os Membros podem, aquando da elaboração ou alteração das respectivas disposições legislativas e regulamentares, adoptar as medidas necessárias para proteger a saúde pública e a nutrição e para promover o interesse público em sectores de importância crucial para o seu desenvolvimento sócio-económico e tecnológico, desde que essas medidas sejam compatíveis com o disposto no presente Acordo.

2 - Poderá ser necessário adoptar medidas adequadas, desde que compatíveis com o disposto no presente Acordo, a fim de impedir a utilização abusiva de direitos de propriedade intelectual por parte dos titulares de direitos ou o recurso a práticas que restrijam de forma não razoável o comércio ou que prejudiquem a transferência internacional de tecnologia.

PARTE II

Normas relativas à existência, âmbito e exercício dos direitos de propriedade intelectual

SECÇÃO 1

Direito de autor e direitos conexos

Artigo 9.º

Relações com a Convenção de Berna

1 - Os Membros devem observar o disposto nos artigos 1.º a 21.º da Convenção de Berna (1971) e no respectivo Anexo. No entanto, os Membros não terão direitos ou obrigações ao abrigo do presente Acordo no que diz respeito aos direitos conferidos pelo artigo 6.º bis da referida Convenção ou aos direitos deles decorrentes.

2 - A protecção do direito de autor abrangerá as expressões, e não as ideias, processos, métodos de execução ou conceitos matemáticos enquanto tal.

Artigo 10.º

Programas de computador e compilações de dados

1 - Os programas de computador, quer sejam expressos em código fonte ou em código objecto, serão protegidos enquanto obras literárias ao abrigo da Convenção de Berna (1971).

2 - As compilações de dados ou de outros elementos, quer sejam fixadas num suporte legível por máquina ou sob qualquer outra forma, que, em virtude da selecção ou da disposição dos respectivos elementos constitutivos, constituam criações intelectuais, serão protegidas enquanto tal. Essa protecção, que não abrangerá os próprios dados ou elementos, não prejudicará os eventuais direitos de autor aplicáveis a esses dados ou elementos.

Artigo 11.º

Direitos de locação

No que diz respeito pelo menos aos programas de computador e às obras cinematográficas, um Membro concederá aos autores e aos respectivos sucessores o direito de autorizar ou proibir a locação comercial ao público de originais ou cópias das suas obras protegidas pelo direito de autor. Um Membro será isento dessa obrigação relativamente às obras cinematográficas, a não ser que a referida locação tenha conduzido à realização generalizada de cópias dessas obras de modo a comprometer substancialmente o direito exclusivo de reprodução conferido nesse Membro aos autores e seus sucessores. No que diz respeito aos programas de computador, esta obrigação não se aplica às locações em que o programa em si não constitua o objecto essencial da locação.

Artigo 12.º

Duração da protecção

Sempre que a duração da protecção de uma obra, que não uma obra fotográfica ou uma obra de artes aplicadas, seja calculada numa outra base que não a vida de uma pessoa singular, essa duração não deverá ser inferior a 50 anos a contar do final do ano civil em que teve lugar a publicação autorizada ou, se a publicação autorizada não ocorrer no prazo de 50 anos a contar da realização da obra, 50 anos a contar do final do ano civil da realização.

Artigo 13.º

Limitações e excepções

Os Membros restringirão as limitações ou excepções aos direitos exclusivos a determinados casos especiais que não obstem à exploração normal da obra e não prejudiquem de forma injustificável os legítimos interesses do titular do direito.

Artigo 14.º

Protecção dos artistas intérpretes ou executantes, dos produtores de fonogramas (registos de som) e dos organismos de radiodifusão

1 - No que diz respeito à fixação da sua execução num fonograma, os artistas intérpretes ou executantes terão a possibilidade de impedir a realização, sem o seu consentimento, dos seguintes actos: a fixação da sua execução não fixada e a reprodução dessa fixação. Os artistas intérpretes ou executantes terão igualmente a possibilidade de impedir a realização, sem o seu consentimento, dos seguintes actos: a radiodifusão por meio de ondas radioeléctricas e a comunicação ao público das suas execuções ao vivo.

2 - Os produtores de fonogramas gozarão do direito de autorizar ou proibir a reprodução directa ou indirecta dos seus fonogramas.

3 - Os organismos de radiodifusão terão o direito de proibir a realização, sem o seu consentimento, dos seguintes actos: a fixação, a reprodução de fixações e a retransmissão de emissões por meio de ondas radioeléctricas, bem como a comunicação ao público de emissões televisivas das mesmas. No caso de os Membros não concederem esses direitos aos organismos de radiodifusão, darão aos titulares de direitos de autor sobre o conteúdo das emissões a possibilidade de impedir a realização dos referidos actos, sem prejuízo do disposto na Convenção de Berna (1971).

4 - As disposições do artigo 11.º em relação aos programas de computador aplicar-se-ão mutatis mutandis aos produtores de fonogramas e a todos os outros detentores de direitos sobre os fonogramas, conforme definido na legislação do Membro. Se em 15 de Abril de 1994 um Membro aplicar um sistema de remuneração equitativa dos titulares de direitos no que diz respeito à locação de fonogramas, poderá manter esse sistema desde que a locação comercial de fonogramas não tenha por efeito comprometer substancialmente os direitos exclusivos de reprodução dos titulares de direitos.

5 - A duração da protecção concedida ao abrigo do presente acordo aos artistas intérpretes ou executantes e aos produtores de fonogramas não será inferior a um período de 50 anos calculado a partir do final do ano civil em que a fixação foi realizada ou em que teve lugar a execução. A duração da protecção concedida nos termos do n.º 3 não será inferior a 20 anos a contar do final do ano civil em que se realizou a emissão.

6 - Os Membros podem relativamente aos direitos conferidos ao abrigo dos n.os 1, 2 e 3, prever condições, limitações, excepções e reservas na medida autorizada pela Convenção de Roma. No entanto, as disposições do artigo 18.º da Convenção de Berna (1971) aplicar-se-ão igualmente, mutatis mutandis, aos direitos dos artistas intérpretes ou executantes e dos produtores de fonogramas sobre os fonogramas.

SECÇÃO 2

Marcas

Artigo 15.º

Objecto da protecção

1 - Qualquer sinal, ou qualquer combinação de sinais, susceptível de distinguir os produtos ou serviços de uma empresa dos de outras empresas poderá constituir uma marca. Esses sinais nomeadamente palavras, incluindo nomes de pessoas, letras, numerais, elementos figurativos e combinações de cores, bem como qualquer combinação desses sinais, serão elegíveis para registo enquanto marcas. No caso de os sinais não serem intrinsecamente susceptíveis de distinguir os produtos ou serviços em questão, os Membros podem subordinar a elegibilidade para efeitos de registo à presença de um carácter distintivo adquirido através da utilização. Os Membros podem exigir como condição do registo que os sinais sejam perceptíveis visualmente.

2 - O disposto no n.º 1 não poderá ser interpretado no sentido de excluir a possibilidade de um Membro recusar o registo de uma marca por outros motivos, desde que estes não constituam uma derrogação ao disposto na Convenção de Paris (1967).

3 - Os Membros podem subordinar a elegibilidade para efeitos de registo à utilização. No entanto, a utilização efectiva de uma marca não constituirá uma condição para o depósito de um pedido de registo. Um pedido não poderá ser recusado pelo simples facto de a utilização prevista da marca não se ter verificado antes do termo de um período de três anos a contar da data do pedido.

4 - A natureza dos produtos ou serviços a que uma marca se destina a ser aplicada não constituirá em caso algum um obstáculo ao registo da marca.

5 - Os Membros publicarão cada marca antes do respectivo registo ou imediatamente após esse registo e assegurarão a possibilidade de apresentação de pedidos de anulação do registo. Além disso, os Membros podem assegurar a possibilidade de ser feita oposição ao registo de uma marca.

Artigo 16.º

Direitos conferidos

1 - O titular de uma marca registada disporá do direito exclusivo de impedir que qualquer terceiro, sem o seu consentimento, utilize no âmbito de operações comerciais sinais idênticos ou semelhantes para produtos ou serviços idênticos ou semelhantes àqueles relativamente aos quais a marca foi registada, caso essa utilização possa dar origem a confusão. No caso de utilização de um sinal idêntico para produtos ou serviços idênticos, presumir-se-á da existência de um risco de confusão. Os direitos acima descritos não prejudicarão quaisquer direitos anteriores existentes nem afectarão a possibilidade de os Membros subordinarem a existência dos à utilização.

2 - O disposto no artigo 6.º bis da Convenção de Paris (1967) aplicar-se-á, mutatis mutandis, aos serviços. A fim de determinar se uma marca é notoriamente conhecida, os Membros terão em conta o conhecimento da marca entre o público directamente interessado, incluindo o conhecimento existente no Membro em questão que tenha resultado da promoção da marca.

3 - O disposto no artigo 6.º bis da Convenção de Paris (1967) aplicar-se-á, mutatis mutandis, aos produtos ou serviços que não sejam semelhantes àqueles relativamente aos quais uma marca foi registada, desde que a utilização dessa marca para esses produtos ou serviços indique a existência de uma relação entre esses produtos ou serviços e o titular da marca registada, e na condição de essa utilização ser susceptível de prejudicar os interesses do titular da marca registada.

Artigo 17.º

Excepções

Os Membros podem prever excepções limitadas aos direitos conferidos por uma marca, como por exemplo a utilização leal de termos descritivos, desde que essas excepções tenham em conta os legítimos interesses do titular da marca e dos terceiros.

Artigo 18.º

Duração da protecção

O registo inicial de uma marca bem como cada renovação do registo serão válidos por um período não inferior a sete anos. O registo de uma marca poderá ser renovado indefinidamente.

Artigo 19.º

Exigência de utilização

1 - Caso a utilização de uma marca seja exigida como condição para a manutenção do registo, o registo só poderá ser anulado após um período ininterrupto de não utilização de pelo menos três anos, a não ser que o titular da marca apresente razões válidas baseadas na existência de obstáculos a essa utilização. As circunstâncias independentes da vontade do titular que constituam um obstáculo à utilização da marca, como por exemplo restrições à importação ou outras medidas impostas pelos poderes públicos em relação aos produtos ou serviços protegidos ao abrigo da marca, serão reconhecidas como razões válidas para a não utilização.

2 - A utilização de uma marca por uma outra pessoa, desde que sob o controlo do seu titular, será reconhecida como utilização da marca para efeitos da manutenção do registo.

Artigo 20.º

Outras exigências

A utilização de uma marca no âmbito de operações comerciais não poderá ser entravada de forma injustificável por exigências especiais, como por exemplo a utilização juntamente com outra marca, a utilização sob uma forma especial ou a utilização de um modo que a torne menos susceptível de distinguir os produtos ou serviços de uma empresa dos de outras empresas. Esta disposição não exclui uma exigência que prescreva a utilização da marca que identifica a empresa produtora dos produtos ou serviços juntamente com a marca que distingue os produtos ou serviços específicos em questão dessa empresa, embora sem estabelecer uma ligação entre ambas.

Artigo 21.º

Concessão de licenças e cessão

Os Membros podem definir as condições aplicáveis à concessão de licenças e à cessão de marcas, no pressuposto de que não será permitida a concessão de licenças obrigatórias e que o titular de uma marca registada terá o direito de ceder a marca com ou sem a transferência da empresa a que a marca pertence.

SECÇÃO 3

Indicações geográficas

Artigo 22.º

Protecção das indicações geográficas

1 - Para efeitos do disposto no presente Acordo, entende-se por indicações geográficas as indicações que identifiquem um produto como sendo originário do território de um Membro, ou de uma região ou localidade desse território, caso determinada qualidade, reputação ou outra característica do produto seja essencialmente atribuível à sua origem geográfica.

2 - No que diz respeito às indicações geográficas, os Membros proporcionarão os meios legais necessários para que as partes interessadas possam impedir:

a) A utilização, na designação ou apresentação de um produto, de qualquer meio que indique ou sugira que o produto em questão é originário de uma zona geográfica diferente do verdadeiro local de origem, de modo a induzir o público em erro quanto à origem geográfica do produto;

b) Qualquer utilização que constitua um acto de concorrência desleal na acepção do artigo 10.º bis da Convenção de Paris (1967).

3 - Qualquer Membro recusará ou invalidará, quer oficiosamente, se a sua legislação o permitir, quer a pedido de uma parte interessada, o registo de uma marca que inclua ou consista numa indicação geográfica em relação a produtos não originários do território indicado, caso a utilização da indicação na marca desses produtos nesse Membro seja susceptível de induzir o público em erro quanto ao verdadeiro local de origem.

4 - A protecção ao abrigo do disposto nos n.os 1, 2 e 3 será aplicável contra uma indicação geográfica que, embora literalmente verdadeira quanto ao território, região ou localidade de que os produtos são originários, transmita erradamente ao público a impressão de que os produtos são originários de um outro território.

Artigo 23.º

Protecção adicional das indicações geográficas para vinhos e bebidas alcoólicas

1 - Cada Membro proporcionará os meios legais necessários para que as partes interessadas possam impedir a utilização de uma indicação geográfica que identifique vinhos, para vinhos não originários do local indicado pela indicação geográfica em questão, ou de uma indicação geográfica que identifique bebidas alcoólicas, para bebidas alcoólicas não originárias do local indicado pela indicação geográfica em questão, mesmo nos casos em que a verdadeira origem dos produtos seja indicada ou em que a indicação geográfica seja utilizada traduzida ou seja acompanhada de expressões como «género», «tipo», «estilo», «imitação» ou afins (ver nota 4).

2 - O registo de uma marca para vinhos que inclua ou consista numa indicação geográfica que identifique vinhos, ou o registo de uma marca para bebidas alcoólicas que inclua ou consista numa indicação geográfica que identifique bebidas alcoólicas, será recusado ou invalidado, oficiosamente se a legislação do Membro o permitir ou a pedido de uma parte interessada, relativamente aos vinhos ou bebidas alcoólicas que não tenham essa origem.

3 - No caso de indicações geográficas homónimas para vinhos, a protecção será concedida em relação a cada indicação, sem prejuízo do disposto no n.º 4 do artigo 22.º Cada Membro determinará as condições práticas em que as indicações homónimas em questão serão diferenciadas umas das outras, tendo em conta a necessidade de assegurar um tratamento equitativo dos produtores envolvidos e de não induzir em erro os consumidores.

4 - No intuito de facilitar a protecção das indicações geográficas para os vinhos, serão conduzidas negociações no âmbito do Conselho TRIPS relativamente ao estabelecimento de um sistema multilateral de notificação e registo de indicações geográficas para vinhos elegíveis para protecção nos Membros que participem no sistema.

(nota 4) Não obstante o disposto na primeira frase do artigo 42.º, os Membros poderão, no que diz respeito a estas obrigações, proporcionará os meios adequados para a sua execução por via administrativa.

Artigo 24.º

Negociações internacionais; excepções

1 - Os Membros acordam em iniciar negociações com vista a aumentar a protecção de indicações geográficas específicas nos termos do artigo 23.º As disposições dos n.os 4 a 8 não serão invocadas por um Membro para recusar conduzir negociações ou concluir acordos bilaterais ou multilaterais. No quadro dessas negociações, os Membros mostrarão abertura para considerar a continuação da aplicabilidade destas disposições em relação a indicações geográficas específicas cuja utilização tenha sido objecto das referidas negociações.

2 - O Conselho TRIPS examinará regularmente a aplicação das disposições da presente secção; o primeiro desses exames será efectuado no prazo de dois anos a contar da entrada em vigor do Acordo OMC. Qualquer questão que afecte o cumprimento das obrigações decorrentes destas disposições poderá ser levada ao conhecimento do Conselho, que, a pedido de um Membro, organizará consultas com qualquer Membro ou Membros sobre a questão em relação à qual não tenha sido possível encontrar uma solução satisfatória por meio de consultas bilaterais ou plurilaterais entre os Membros envolvidos. O Conselho tomará as medidas que sejam acordadas para facilitar a aplicação do disposto na presente secção e para prosseguir os objectivos nela previstos.

3 - Ao implementar o disposto na presente secção, um Membro não diminuirá a protecção das indicações geográficas existentes nesse Membro imediatamente antes da data de entrada em vigor do Acordo OMC.

4 - Nenhuma disposição da presente secção exigirá que um Membro impeça que qualquer dos seus nacionais, ou qualquer pessoa domiciliada no seu território, faça uma utilização continuada e semelhante de uma indicação geográfica específica de um outro Membro que identifique vinhos ou bebidas alcoólicas relativamente a produtos ou serviços, caso essa pessoa tenha utilizado essa indicação geográfica de um modo contínuo relativamente a produtos ou serviços idênticos ou afins no território desse Membro, A) durante um período de pelo menos 10 anos anterior a 15 de Abril de 1994, ou B) de boa fé, antes dessa data.

5 - No caso de uma marca ter sido requerida ou registada de boa fé, ou no caso de os direitos a uma marca terem sido adquiridos através de uma utilização de boa fé:

a) Antes da data de aplicação destas disposições no Membro em questão, conforme definido na parte VI; ou

b) Antes de a indicação geográfica beneficiar da protecção no seu país de origem,

as medidas adoptadas em execução do disposto na presente secção não prejudicarão a elegibilidade ou a validade do registo de uma marca, ou o direito de utilização de uma marca, com fundamento no facto de essa marca ser idêntica ou semelhante a uma indicação geográfica.

6 - Nenhuma disposição da presente secção exigirá que um Membro aplique o disposto nesta secção relativamente a uma indicação geográfica de qualquer outro Membro para produtos ou serviços em relação aos quais essa indicação seja idêntica ao termo habitualmente utilizado em linguagem corrente como designação corrente desses produtos ou serviços no território desse Membro. Nenhuma disposição da presente secção exigirá que um Membro aplique o disposto nesta secção relativamente a uma indicação geográfica de qualquer outro Membro para produtos da vinha em relação aos quais essa indicação seja idêntica à designação corrente de uma variedade de uva existente no território desse Membro na data de entrada em vigor do Acordo OMC.

7 - Qualquer Membro pode estabelecer que qualquer pedido formulado ao abrigo do disposto na presente secção em relação à utilização ou registo de uma marca deverá ser apresentado no prazo de cinco anos após a utilização incorrecta da indicação protegida se ter tornado do conhecimento geral nesse Membro, ou após a data de registo da marca nesse Membro, desde que a marca já tenha sido publicada nessa data, se essa data for anterior à data em que a utilização incorrecta se tornou do conhecimento geral desse Membro, desde que a indicação geográfica não seja utilizada ou registada de má fé.

8 - As disposições da presente secção não prejudicarão de modo algum o direito de qualquer pessoa utilizar, no âmbito de operações comerciais, o nome dessa pessoa ou o nome do seu antecessor comercial, excepto se esse nome for utilizado de modo a induzir o público em erro.

9 - Não existirá qualquer obrigação por força do presente Acordo de proteger indicações geográficas que não sejam ou deixem de ser protegidas no seu país de origem, ou que tenham caído em desuso nesse país.

SECÇÃO 4

Desenhos e modelos industriais

Artigo 25.º

Requisitos de protecção

1 - Os Membros assegurarão uma protecção dos desenhos ou modelos industriais criados de forma independente que sejam novos ou originais. Os Membros podem estabelecer que os desenhos ou modelos não são novos ou originais se não diferirem significativamente de desenhos ou modelos conhecidos ou de combinações de características de desenhos ou modelos conhecidas. Os Membros podem estabelecer que essa protecção não abrangerá os desenhos ou modelos ditados essencialmente por considerações de carácter técnico ou funcional.

2 - Cada Membro assegurará que os requisitos para obtenção da protecção de desenhos ou modelos de têxteis, nomeadamente no que se refere a eventuais custos, exames ou publicações, não comprometam indevidamente a possibilidade de requerer e obter essa protecção. Os Membros serão livres de dar cumprimento a esta obrigação através da legislação em matéria de desenhos ou modelos industriais ou através da legislação em matéria de direitos de autor.

Artigo 26.º

Protecção

1 - O titular de um desenho ou modelo industrial protegido poderá impedir que terceiros, sem o seu consentimento, fabriquem, vendam ou importem artigos a que seja aplicado, ou que incorporem, um desenho ou modelo que seja, na totalidade ou numa parte substancial, uma cópia do desenho ou modelo protegido, quando esses actos sejam realizados com finalidade comercial.

2 - Os Membros podem prever excepções limitadas à protecção dos desenhos ou modelos industriais, desde que essas excepções não colidam de modo injustificável com a exploração normal dos desenhos ou modelos industriais protegidos e não prejudiquem de forma injustificável os legítimos interesses do titular do desenho ou modelo protegido, tendo em conta os legítimos interesses de terceiros.

3 - A duração da protecção oferecida será de pelo menos 10 anos.

SECÇÃO 5

Patentes

Artigo 27.º

Objecto patenteável

1 - Sem prejuízo do disposto nos n.os 2 e 3, podem ser obtidas patentes para quaisquer invenções, quer se trate de produtos ou processos, em todos os domínios da tecnologia, desde que essas invenções sejam novas, envolvam uma actividade inventiva e sejam susceptíveis de aplicação industrial (ver nota 5). Sem prejuízo do disposto no n.º 4 do artigo 65.º, no n.º 8 do artigo 70.º e no n.º 3 do presente artigo, será possível obter patentes e gozar de direitos de patente sem discriminação quanto ao local de invenção, ao domínio tecnológico e ao facto de os produtos serem importados ou produzidos localmente.

2 - Os Membros podem excluir da patenteabilidade as invenções cuja exploração comercial no seu território deva ser impedida para protecção da ordem pública ou dos bons costumes, e inclusivamente para protecção da vida e da saúde das pessoas e animais e para preservação das plantas ou para evitar o ocasionamento de graves prejuízos para o ambiente, desde que essa exclusão não se deva unicamente ao facto de a exploração ser proibida pela sua legislação.

3 - Os Membros podem igualmente excluir da patenteabilidade:

a) Os métodos diagnósticos, terapêuticos e cirúrgicos para o tratamento de pessoas ou animais;

b) As plantas e animais, com excepção dos microrganismos, e os processos essencialmente biológicos de obtenção de plantas ou animais, com excepção dos processos não biológicos e microbiológicos. No entanto, os Membros assegurarão a protecção das variedades vegetais, quer por meio de patentes ou de um sistema sui generis eficaz, quer por meio de qualquer combinação dessas duas formas. As disposições da presente alínea serão objecto de revisão quatro anos após a data de entrada em vigor do Acordo OMC.

(nota 5) Para efeitos do disposto no presente artigo, as expressões «actividade inventiva» e «susceptível de aplicação industrial» poderão ser consideradas por um Membro como sinónimas, respectivamente, dos termos «não evidente» e «útil».

Artigo 28.º

Direitos conferidos

1 - Uma patente confere ao seu titular os seguintes direitos exclusivos:

a) No caso de o objecto da patente ser um produto, o direito de impedir que qualquer terceiro, sem o seu consentimento, pratique os seguintes actos: fabricar, utilizar, pôr à venda, vender ou importar (ver nota 6) para esses efeitos esse produto;

b) No caso de o objecto da patente ser um processo, o direito de impedir que qualquer terceiro, sem o seu consentimento, utilize esse processo ou pratique os seguintes actos: utilizar, pôr à venda, vender ou importar para esses efeitos pelo menos o produto obtido directamente por esse processo.

2 - O titular de uma patente tem igualmente o direito de ceder ou transmitir por via sucessória a patente e de concluir contratos de licença.

(nota 6) Este direito, como todos os outros direitos conferidos ao abrigo do presente Acordo relativamente à utilização, venda, importação ou outras formas de distribuição dos produtos, está sujeito ao disposto no artigo 6.º

Artigo 29.º

Condições impostas aos requerentes de uma patente

1 - Os Membros exigirão que o requerente de uma patente divulgue a invenção de uma forma suficientemente clara e completa para que a invenção possa ser executada por um profissional e podem exigir que o requerente indique qual o melhor modo de executar a invenção de que o inventor tenha conhecimento na data de depósito ou, caso seja reivindicada uma prioridade, na data de prioridade do pedido.

2 - Os Membros podem exigir que o requerente de uma patente forneça informações sobre os pedidos correspondentes apresentados pelo requerente no estrangeiro e sobre as patentes correspondentes obtidas no estrangeiro.

Artigo 30.º

Excepções aos direitos conferidos

Os Membros podem prever excepções limitadas aos direitos exclusivos conferidos por uma patente, desde que essas excepções não colidam de modo injustificável com a exploração normal da patente e não prejudiquem de forma injustificável os legítimos interesses do titular da patente, tendo em conta os legítimos interesses de terceiros.

Artigo 31.º

Outras utilizações sem o consentimento do titular

Nos casos em que a legislação de um Membro permita outras utilizações (ver nota 7) do objecto de uma patente sem o consentimento do respectivo titular, incluindo a utilização pelos poderes públicos ou por terceiros autorizados pelos poderes públicos, devem ser respeitadas as seguintes disposições:

a) A autorização dessa utilização será analisada em função das suas características próprias;

b) Essa utilização só pode ser autorizada se, antes dessa utilização, o potencial utilizador tiver desenvolvido esforços no sentido de obter o consentimento do titular em condições comerciais razoáveis e se tais esforços não tiverem tido êxito dentro de um prazo razoável. Um Membro pode derrogar esta exigência em caso de situação de extrema urgência, ou em caso de utilização pública sem finalidade comercial. Em situações de emergência nacional ou noutras circunstâncias de extrema urgência, o titular será no entanto notificado logo que possível. No caso de utilização pública sem finalidade comercial, e sempre que os poderes públicos ou a empresa contratante, sem proceder a uma investigação de patente, saibam ou tenham razões comprováveis para saber que uma patente válida está a ser ou será utilizada pelos poderes públicos ou por sua conta, o titular será informado imediatamente;

c) O âmbito e a duração dessa utilização serão limitados à finalidade para a qual foi autorizada; além disso, e no caso da tecnologia de semicondutores, essa utilização apenas poderá ter uma finalidade pública não comercial ou destinar-se a corrigir uma prática que tenha sido considerada anticoncorrencial na sequência de um processo judicial ou administrativo;

d) Essa utilização será não exclusiva;

e) Essa utilização não pode ser objecto de cessão, excepto com a parte da empresa ou goodwill que beneficia dessa utilização;

f) Qualquer utilização desse tipo será autorizada predominantemente para fornecimento do mercado interno do Membro que autorizou essa utilização;

g) A autorização de uma utilização desse tipo pode ser revogada, sem prejuízo de uma protecção adequada dos legítimos interesses das pessoas beneficiárias da mesma, se e quando as circunstâncias que lhe deram origem deixarem de existir e não forem susceptíveis de voltar a apresentar-se. A autoridade competente estará habilitada a reexaminar, mediante pedido fundamentado, a continuação da existência das referidas circunstâncias;

h) O titular receberá uma remuneração adequada a cada caso concreto, tendo em conta o valor económico da autorização;

i) A validade legal de qualquer decisão relativa à autorização de uma utilização desse tipo pode ser objecto de revisão judicial ou outra revisão independente por parte de uma autoridade superior distinta no Membro em questão;

j) Qualquer decisão relativa à remuneração prevista em relação a uma utilização desse tipo poderá ser objecto de revisão judicial ou outra revisão independente por parte de uma autoridade superior distinta no Membro em questão;

k) Os Membros não são obrigados a aplicar as condições previstas nas alíneas b) e f) no caso de a referida utilização ser autorizada para corrigir uma prática considerada anticoncorrencial na sequência de um processo judicial ou administrativo. A necessidade de corrigir práticas anticoncorrenciais poderá ser tida em conta para a determinação do montante da remuneração paga nesses casos. As autoridades competentes estarão habilitadas a recusar a revogação da autorização, se e quando as condições que conduziram a essa autorização forem susceptíveis de voltar a apresentar-se;

l) No caso de essa utilização ser autorizada para permitir a exploração de uma patente («a segunda patente») que não pode ser explorada sem infringir uma outra patente («a primeira patente»), aplicar-se-ão as seguintes condições adicionais:

i) A invenção reivindicada na segunda patente envolverá um importante progresso técnico de significado económico considerável em relação à invenção reivindicada na primeira patente;

ii) O titular da primeira patente terá direito a uma licença cruzada, em condições razoáveis, para utilizar a invenção reivindicada na segunda patente; e

iii) A utilização autorizada em relação à primeira patente não poderá ser objecto de cessão, excepto com a cessão da segunda patente.

(nota 7) Entende-se por «outras utilizações» todas as utilizações que não as autorizadas ao abrigo do artigo 30.º

Artigo 32.º

Revogação/prescrição

Será facultada a possibilidade de revisão judicial de qualquer decisão relativa à revogação ou prescrição de uma patente.

Artigo 33.º

Duração da protecção

A duração da protecção oferecida não terminará antes do termo de um período de 20 anos calculado a partir da data de depósito (ver nota 8).

(nota 8) Pressupõe-se que os Membros que não dispõem de um sistema de concessão inicial poderão estabelecer que a duração da protecção seja calculada a partir da data de depósito no sistema de concessão inicial.

Artigo 34.º

Patentes de processos: ónus da prova

1 - Para efeitos dos processos civis relativamente à infracção dos direitos do titular referidos no n.º 1, alínea b), do artigo 28.º, se o objecto de uma patente for um processo de obtenção de um produto, as autoridades judiciais serão competentes para ordenar ao requerido que prove que o processo de obtenção de um produto idêntico é diferente do processo patenteado. Consequentemente, os Membros estabelecerão, na presença de pelo menos uma das seguintes circunstâncias, que qualquer produto idêntico, quando produzido sem o consentimento do titular da patente e na falta da prova em contrário, será considerado como tendo sido obtido pelo processo patenteado:

a) Se o produto obtido pelo processo patenteado for novo:

b) Se existir uma forte probabilidade de o produto idêntico ter sido obtido por esse processo e o titular da patente não tiver podido determinar, através de esforços razoáveis nesse sentido, qual o processo efectivamente utilizado.

2 - Qualquer Membro será livre de estabelecer que o ónus da prova indicado no n.º 1 incumbirá ao alegado infractor apenas no caso de se encontrar preenchida a condição referida na alínea a) ou apenas no caso de se encontrar preenchida a condição referida na alínea b).

3 - Por ocasião da adução de prova em contrário, serão tidos em conta os legítimos interesses dos requeridos em proteger os seus segredos industriais e comerciais.

SECÇÃO 6

Configurações (topografias) de circuitos integrados

Artigo 35.º

Relações com o Tratado IPC

Os Membros acordam em conceder protecção aos esquemas de configuração (topografias) de circuitos integrados (designados no presente Acordo por «esquemas de configuração») de acordo com o disposto nos artigos 2.º a 7.º (com excepção do n.º 3 do artigo 6.º), no artigo 12.º e no n.º 3 do artigo 16.º do Tratado sobre a Protecção da Propriedade Intelectual Relativa aos Circuitos Integrados e a respeitar, além disso, as disposições seguintes.

Artigo 36.º

Âmbito da protecção

Sem prejuízo do disposto no n.º 1 do artigo 37.º, os Membros considerarão ilegais os seguintes actos, caso sejam realizados sem o consentimento do titular (ver nota 9): a importação, venda ou distribuição por qualquer outra forma, com finalidade comercial, de um esquema de configuração protegido, um circuito integrado em que é incorporado um esquema de configuração protegido, ou um artigo em que é incorporado um circuito integrado desse tipo, apenas na medida em que continue a incluir um esquema de configuração reproduzido ilegalmente.

(nota 9) O termo «titular» utilizado na presente secção deverá ser entendido como tendo o mesmo significado que o termo «titular» utilizado no Tratado IPIC.

Artigo 37.º

Actos que não exigem a autorização do titular

1 - Não obstante o disposto no artigo 36.º, nenhum Membro considerará ilegal a realização de qualquer dos actos referidos nesse artigo em relação a um circuito integrado em que seja incorporado um esquema de configuração reproduzido ilegalmente ou a qualquer artigo em que seja incorporado um circuito integrado desse tipo, se a pessoa que realizou ou ordenou a realização desses actos não sabia nem deveria saber, aquando da aquisição do circuito integrado ou do artigo em que esse circuito integrado era incorporado, que o mesmo incorporava um esquema de configuração reproduzido ilegalmente. Os Membros estabelecerão que, após o momento em que essa pessoa tiver recebido informações suficientes de que o esquema de configuração foi reproduzido ilegalmente, essa pessoa poderá realizar qualquer dos actos em questão em relação aos produtos em seu poder ou encomendados antes desse momento, mas deverá pagar ao titular um montante equivalente a uma royalty adequada, conforme seria exigível ao abrigo de uma licença livremente negociada em relação a um esquema de configuração desse tipo.

2 - As condições estabelecidas nas alíneas a) a k) do artigo 31.º aplicar-se-ão mutatis mutandis no caso de concessão de uma licença não voluntária em relação a um esquema de configuração ou à sua utilização pelos poderes públicos ou por conta destes sem o consentimento do titular.

Artigo 38.º

Duração da protecção

1 - Nos Membros que subordinem a concessão da protecção ao registo, a duração da protecção dos esquemas de configuração não terminará antes do termo de um período de 10 anos calculado a partir da data de depósito de um pedido de registo ou da primeira exploração comercial ocorrida em qualquer ponto do mundo.

2 - Nos Membros que não subordinem a concessão da protecção ao registo, os esquemas de configuração serão protegidos por um período não inferior a 10 anos a contar da data da primeira exploração comercial ocorrida em qualquer ponto do mundo.

3 - Não obstante o disposto nos n.os 1 e 2, um Membro poderá estabelecer que a protecção caducará 15 anos após a criação do esquema de configuração.

SECÇÃO 7

Protecção de informações não divulgadas

Artigo 39.º

1 - Ao assegurar uma protecção efectiva contra a concorrência desleal, conforme previsto no artigo 10.º bis da Convenção de Paris (1967), os Membros protegerão as informações não divulgadas em conformidade com o disposto no n.º 2 e os dados comunicados aos poderes públicos ou organismos públicos em conformidade com o disposto no n.º 3.

2 - As pessoas singulares e colectivas terão a possibilidade de impedir que informações legalmente sob o seu controlo sejam divulgadas, adquiridas ou utilizadas por terceiros sem o seu consentimento de uma forma contrária às práticas comerciais leais (ver nota 10), desde que essas informações:

a) Sejam secretas, no sentido de não serem geralmente conhecidas ou facilmente acessíveis, na sua globalidade ou na configuração e ligação exactas dos seus elementos constitutivos, para pessoas dos círculos que lidam normalmente com o tipo de informações em questão;

b) Tenham valor comercial pelo facto de serem secretas; e

c) Tenham sido objecto de diligências consideráveis, atendendo às circunstâncias, por parte da pessoa que detém legalmente o controlo das informações, no sentido de as manter secretas.

3 - Sempre que subordinem a aprovação da comercialização de produtos farmacêuticos ou de produtos químicos para a agricultura que utilizem novas entidades químicas à apresentação de dados não divulgados referentes a ensaios ou outros, cuja obtenção envolva um esforço considerável, os Membros protegerão esses dados contra qualquer utilização comercial desleal. Além disso, os Membros protegerão esses dados contra a divulgação, excepto quando necessário para protecção do público, ou a menos que sejam tomadas medidas para garantir a protecção dos dados contra qualquer utilização comercial desleal.

(nota 10) Para efeitos da presente disposição, a expressão «de uma forma contrária às práticas comerciais leais» designará pelo menos práticas como a ruptura de contrato, o abuso de confiança e a incitação à infracção, incluindo a aquisição de informações não divulgadas por parte de terceiros que tinham conhecimento de que a referida aquisição envolvia tais práticas ou que demonstraram grave negligência ao ignorá-lo.

SECÇÃO 8

Controlo das práticas anticoncorrenciais em licenças contratuais

Artigo 40.º

1 - Os Membros acordam em que algumas práticas ou condições de concessão de licenças referentes aos direitos de propriedade intelectual que restringem a concorrência podem ter efeitos adversos sobre o comércio e entravar a transferência e difusão de tecnologia.

2 - Nenhuma disposição do presente Acordo impedirá os Membros de especificar na sua legislação as práticas ou condições de concessão de licenças que possam, em determinados casos, constituir um abuso dos direitos de propriedade intelectual com efeitos adversos sobre a concorrência no mercado considerado. Conforme acima previsto, um Membro pode adoptar, em conformidade com as outras disposições do presente Acordo, medidas adequadas para impedir ou controlar essas práticas, que poderão incluir, por exemplo, condições de retrocessão exclusivas, condições que impeçam a contestação da validade e um regime coercivo de concessão de licenças em bloco, à luz das legislações e regulamentações relevantes desse Membro.

3 - Mediante pedido, cada Membro acederá a entrar em consultas com qualquer outro Membro que tenha motivos para crer que um titular de direitos de propriedade intelectual, nacional do Membro ao qual foram requeridas as consultas ou domiciliado nesse Membro, está a agir em violação das disposições legislativas e regulamentares do Membro requerente relativas ao objecto da presente secção, e que pretenda assegurar o respeito dessa legislação, sem prejuízo de qualquer acção que um ou outro Membro possa iniciar nos termos da lei e da sua inteira liberdade de tomar uma decisão definitiva. O Membro requerido mostrará toda a receptividade para iniciar consultas com o Membro requerente, facultando igualmente possibilidades para o efeito, e cooperará através do fornecimento de informações não confidenciais colocadas à disposição do público que sejam relevantes para o assunto em causa e de outras informações de que o Membro disponha, dentro do respeito da legislação interna e sob reserva da conclusão de acordos mutuamente satisfatórios relativos à salvaguarda da sua confidencialidade por parte do Membro requerente.

4 - Um Membro cujos nacionais ou pessoas domiciliadas no seu território sejam objecto de processos noutro Membro relativamente a uma alegada violação das disposições legislativas e regulamentares desse outro Membro relativas ao objecto da presente secção verá ser-lhe facultada por parte do outro Membro, mediante pedido, a possibilidade de proceder a consultas em condições idênticas às previstas no n.º 3.

PARTE III

Aplicação efectiva dos direitos de propriedade intelectual

SECÇÃO 1

Obrigações gerais

Artigo 41.º

1 - Os Membros velarão por que a sua legislação preveja processos de aplicação efectiva conforme especificado na presente parte de modo a permitir uma acção eficaz contra qualquer acto de infracção dos direitos de propriedade intelectual abrangidos pelo presente Acordo, incluindo medidas correctivas expeditas destinadas a impedir infracções e medidas correctivas que constituam um dissuasivo de novas infracções. Esses processos serão aplicados de modo a evitar a criação de entraves ao comércio legítimo e a oferecer salvaguardas contra qualquer utilização abusiva.

2 - Os processos destinados a assegurar uma aplicação efectiva dos direitos de propriedade intelectual serão leais e equitativos. Esses processos não serão desnecessariamente complexos ou dispendiosos, nem implicarão prazos não razoáveis ou atrasos injustificados.

3 - As decisões quanto ao fundo de uma causa serão preferencialmente apresentadas por escrito e fundamentadas. Essas decisões serão postas à disposição pelo menos das partes no processo sem atrasos indevidos. As decisões quanto ao fundo de uma causa basear-se-ão exclusivamente em elementos de prova relativamente aos quais tenha sido dada às partes a possibilidade de serem ouvidas.

4 - As partes num processo terão a possibilidade de pedir a revisão por uma instância judicial das decisões administrativas finais e, sem prejuízo da lei reguladora da competência de um Membro em função da importância da causa, pelo menos dos aspectos de direito das decisões judiciais iniciais quanto ao mérito de uma causa. No entanto, não haverá qualquer obrigação de prever a possibilidade de revisão de absolvições em processos penais.

5 - Fica entendido que a presente parte não cria qualquer obrigação, para assegurar a aplicação efectiva dos direitos de propriedade intelectual, de instituir um sistema judicial distinto do regime geral de aplicação da lei, nem afecta a capacidade dos Membros de aplicarem a sua lei em geral. Nenhuma disposição da presente parte cria qualquer obrigação relativamente à repartição de meios entre a aplicação efectiva dos direitos de propriedade intelectual e a aplicação da lei em geral.

SECÇÃO 2

Processos e medidas correctivas civis e administrativos

Artigo 42.º

Processos leais e equitativos

Os Membros velarão por que os titulares de direitos (ver nota 11) tenham acesso a processos judiciais civis para efeitos de aplicação efectiva de qualquer direito de propriedade intelectual abrangido pelo presente Acordo. Os requeridos devem ser informados atempadamente através de uma notificação escrita suficientemente pormenorizada, indicando os fundamentos das alegações. As partes serão autorizadas a fazer-se representar por um consultor jurídico independente e os processos não deverão impor exigências excessivas relativamente à comparência pessoal obrigatória. Todas as partes em processos desse tipo deverão poder fundamentar as suas alegações e apresentar todos os elementos de prova relevantes. O processo deverá prever um meio de identificar e proteger informações confidenciais, a não ser que tal seja contrário às normas constitucionais vigentes.

(nota 11) Para efeitos da presente parte, a expressão «titular de direitos» inclui as federações e associações habilitadas a invocar esses direitos.

Artigo 43.º

Elementos de prova

1 - As autoridades judiciais serão habilitadas, no caso de uma parte ter apresentado elementos de prova razoavelmente acessíveis suficientes para sustentar as suas alegações e ter indicado elementos de prova relevantes para fundamentação das suas alegações que se encontrem sob o controlo da outra parte, a ordenar que esses elementos de prova sejam apresentados pela outra parte, se for caso disso em condições que garantam a protecção de informações confidenciais.

2 - Nos casos em que uma parte num processo recuse voluntariamente e sem motivos válidos o acesso às informações necessárias ou não forneça essas informações num prazo razoável, ou entrave de modo significativo um processo relativo a uma acção de execução, um Membro pode conferir poderes às autoridades judiciais para tomar deliberações preliminares e finais, afirmativas ou negativas, com base nas informações que lhes tenham sido apresentadas, incluindo a queixa ou a alegação apresentada pela parte prejudicada pela recusa do acesso à informação, na condição de ser dada às partes a possibilidade de serem ouvidas sobre as alegações ou os elementos de prova.

Artigo 44.º

Injunções

1 - As autoridades judiciais serão habilitadas a ordenar a uma parte que cesse uma infracção, inter alia para impedir a introdução nos circuitos comerciais sob a sua jurisdição de mercadorias importadas que envolvam uma infracção de um direito de propriedade intelectual, imediatamente após o desalfandegamento dessas mercadorias. Os Membros não são obrigados a conferir esses poderes no que diz respeito a objectos protegidos adquiridos ou encomendados por uma pessoa antes de saber ou de ter motivos válidos para saber que uma transacção sobre esse objecto implicaria a infracção de um direito de propriedade intelectual.

2 - Não obstante todas as outras disposições da presente parte e na condição de serem respeitadas as disposições da parte II que se referem especificamente à utilização por parte dos poderes públicos, ou por terceiros por eles autorizados, sem a autorização do titular do direito, os Membros podem limitar as medidas correctivas aplicáveis contra uma utilização desse tipo ao pagamento de uma remuneração nos termos da alínea h) do artigo 31.º Noutros casos, serão aplicáveis as medidas correctivas previstas na presente parte ou, caso essas medidas correctivas sejam incompatíveis com a legislação de um Membro, poderão ser obtidas sentenças de carácter declarativo e uma compensação adequada.

Artigo 45.º

Indemnizações

1 - As autoridades judiciais serão habilitadas a ordenar ao infractor que pague ao titular do direito uma indemnização por perdas e danos adequada para compensar o prejuízo sofrido pelo titular do direito devido à infracção do direito de propriedade intelectual dessa pessoa por parte de um infractor que sabia ou deveria saber que estava a desenvolver uma actividade ilícita.

2 - As autoridades judiciais serão igualmente habilitadas a ordenar ao infractor que pague ao titular do direito o montante das despesas, que poderão incluir os honorários de advogado apropriados. Em determinados casos, os Membros podem autorizar as autoridades judiciais a ordenar a restituição dos lucros e/ou o pagamento de indemnizações por perdas e danos preestabelecidas, mesmo no caso de o infractor não saber nem dever ter sabido que estava a desenvolver uma actividade ilícita.

Artigo 46.º

Outras medidas correctivas

A fim de criar um meio dissuasivo eficaz contra a infracção, as autoridades judiciais poderão ordenar que as mercadorias que tenham verificado estar em infracção sejam, sem qualquer tipo de compensação, retiradas dos circuitos comerciais de modo a evitar qualquer prejuízo para o titular do direito ou a menos que tal seja contrário às normas constitucionais vigentes destruídas. As autoridades judiciais serão igualmente habilitadas a ordenar que os materiais e instrumentos que tenham sido utilizados predominantemente na criação das mercadorias em infracção sejam, sem qualquer tipo de compensação, retiradas dos circuitos comerciais de modo a minimizar os riscos de novas infracções. Ao considerar pedidos desse tipo, será tida em conta a necessidade de assegurar a proporcionalidade entre a gravidade da infracção e as medidas correctivas ordenadas, bem como os interesses de terceiros. No que diz respeito às mercadorias apresentadas sob uma marca de contrafacção, a simples retirada da marca aposta ilicitamente não será suficiente, a não ser em casos excepcionais, para permitir a introdução das mercadorias nos circuitos comerciais.

Artigo 47.º

Direito de informação

Salvo quando tal se revele desproporcionado em relação à gravidade da infracção, os Membros podem habilitar as autoridades judiciais a ordenar ao infractor que informe o titular do direito sobre a identidade de terceiros envolvidos na produção e distribuição das mercadorias ou serviços em infracção e sobre os seus circuitos de distribuição.

Artigo 48.º

Indemnização do requerido

1 - As autoridades judiciais serão habilitadas a ordenar à parte a pedido da qual tenham sido tomadas medidas, e que tenha utilizado de forma abusiva os processos de aplicação, que conceda à parte indevidamente obrigada a uma acção ou a uma omissão uma compensação adequada pelo prejuízo sofrido devido a tal abuso. As autoridades judiciais serão igualmente habilitadas a ordenar ao requerente que pague as despesas do requerido, que poderão incluir os honorários de advogado adequados.

2 - No que diz respeito à aplicação de qualquer legislação relativa à protecção ou aplicação efectiva de direitos de propriedade intelectual, os Membros só isentarão as autoridades e funcionários públicos da responsabilidade que implica medidas correctivas adequadas no caso de terem agido, ou terem tido a intenção de agir, de boa fé no âmbito da aplicação dessa legislação.

Artigo 49.º

Processos administrativos

Na medida em que uma medida correctiva de carácter civil possa ser ordenada na sequência de processos administrativos quanto ao fundo de uma causa, esses processos deverão obedecer a princípios materialmente equivalentes aos enunciados na presente secção.

SECÇÃO 3

Medidas provisórias

Artigo 50.º

1 - As autoridades judiciais serão habilitadas a ordenar medidas provisórias imediatas e eficazes:

a) Para impedir uma infracção a qualquer direito de propriedade intelectual, e nomeadamente para impedir a introdução nos circuitos comerciais sob a sua jurisdição de mercadorias, incluindo mercadorias importadas imediatamente após o seu desalfandegamento;

b) Para preservar elementos de prova relevantes no que diz respeito à alegada infracção.

2 - As autoridades judiciais serão habilitadas a adoptar medidas provisórias inaudita altera parte sempre que necessário, especialmente nos casos em que um eventual atraso seja susceptível de causar prejuízos irreparáveis ao titular do direito, ou quando exista um risco comprovável de destruição dos elementos de prova.

3 - As autoridades judiciais serão habilitadas a exigir ao requerente que forneça elementos de prova razoavelmente acessíveis que lhes permitam concluir com um grau de certeza suficiente que o requerente é o titular do direito e que o direito do requerente está a ser infringido ou que a sua infracção é iminente, e para ordenar ao requerente que constitua uma caução ou uma garantia equivalente suficiente para proteger o requerido e para prevenir abusos.

4 - No casos de terem sido adoptadas medidas provisórias inaudita altera parte, as partes afectadas serão notificadas sem demora, o mais tardar após a execução das medidas. Pode proceder-se a uma revisão, incluindo o direito de ser ouvido, mediante pedido do requerido com vista a decidir-se, num prazo razoável a contar da notificação das medidas, se estas deverão ser alteradas, revogadas ou confirmadas.

5 - O requerente pode ser obrigado a fornecer outras informações necessárias para a identificação das mercadorias em causa por parte da autoridade que executará as medidas provisórias.

6 - Sem prejuízo do disposto no n.º 4, as medidas provisórias tomadas nos termos dos n.os 1 e 2 serão revogadas ou deixarão de outra forma de produzir efeitos, a pedido do requerente, caso um processo conducente a uma decisão quanto ao fundo não seja iniciado num prazo razoável, que será definido pela autoridade judicial que ordenar as medidas quando a legislação de um Membro o permita ou, na falta dessa definição, num prazo não superior a 20 dias úteis ou a 31 dias de calendário, sendo de considerar o prazo mais longo.

7 - No caso de as medidas provisórias serem revogadas ou caducarem devido a qualquer acto ou omissão do requerente, ou no caso de se verificar ulteriormente que não existiu qualquer infracção ou ameaça de infracção de um direito de propriedade intelectual, as autoridades judiciais serão habilitadas a ordenar ao requerente, a pedido do requerido, que conceda a este último uma compensação adequada pelos prejuízos causados por essas medidas.

8 - Na medida em que uma medida provisória possa ser ordenada na sequência de processos administrativos, esses processos deverão obedecer a princípios materialmente equivalentes aos enunciados na presente secção.

SECÇÃO 4

Requisitos especiais relacionados com as medidas na fronteira (ver nota 12)

Artigo 51.º

Suspensão da introdução em livre circulação

por parte das autoridades aduaneiras

Os Membros adoptarão, em conformidade com as disposições abaixo estabelecidas, processos (ver nota 13) que permitam ao titular de um direito que tenha motivos válidos para suspeitar que possa ocorrer a importação de mercadorias apresentadas sob uma marca de contrafacção ou de mercadorias pirateadas em desrespeito do direito de autor (ver nota 14), apresentar às autoridades administrativas ou judiciais competentes um pedido escrito com vista à suspensão da introdução em livre circulação dessas mercadorias por parte das autoridades aduaneiras. Os Membros podem permitir a apresentação de um pedido desse tipo em relação a mercadorias que envolvam outras infracções a direitos de propriedade intelectual, desde que sejam preenchidos os requisitos enunciados na presente secção. Os Membros podem igualmente prever processos correspondentes relativamente à suspensão por parte das autoridades aduaneiras da introdução em livre circulação de mercadorias em infracção destinadas à exportação a partir dos seus territórios.

(nota 12) No caso de um Membro ter desmantelado substancialmente todos os controlos sobre os movimentos de mercadorias através da sua fronteira com outro Membro que pertença a uma mesma união aduaneira, esse Membro não será obrigado a aplicar as disposições da presente secção nessa fronteira.

(nota 13) Não haverá qualquer obrigação de aplicar esses processos em relação à importação de mercadorias colocadas no mercado noutro país pelo titular ou direito ou com o seu consentimento ou às mercadorias em trânsito.

(nota 14) Para efeitos do disposto no presente Acordo, entende-se por:

a) Mercadorias apresentadas sob uma marca de contrafacção, qualquer mercadoria, incluindo a embalagem, a que seja aposta sem autorização uma marca idêntica à marca validamente registada em relação a essas mercadorias, ou que não possa ser distinguida, nos seus aspectos essenciais, dessa marca, e que por essa razão infrinja os direitos do titular da marca em questão nos termos da legislação do país de importação;

b) Mercadorias pirateadas em desrespeito do direito de autor, qualquer mercadoria que seja uma cópia feita sem o consentimento do titular ou de uma pessoa devidamente autorizada pelo titular no país de produção e que seja feita directa ou indirectamente a partir de um artigo, sempre que a realização dessa cópia constitua uma infracção de um direito de autor ou de um direito conexo nos termos da legislação do país de importação.

Artigo 52.º

Pedidos

Qualquer titular de um direito que dê início aos processos previstos no artigo 51.º será obrigado a fornecer elementos de prova adequados que permitam às autoridades competentes concluir que, nos termos da legislação do país de importação, existe aparentemente uma infracção do direito de propriedade intelectual do titular, bem como a fornecer uma descrição suficientemente pormenorizada das mercadorias, para que as autoridades aduaneiras as possam reconhecer facilmente. As autoridades competentes comunicarão ao requerente, num prazo razoável, se o seu pedido foi deferido e, quando determinado por estas autoridades, o período de aplicação das medidas a tomar pelas autoridades aduaneiras.

Artigo 53.º

Caução ou garantia equivalente

1 - As autoridades competentes podem exigir que o requerente constitua uma caução ou uma garantia equivalente suficiente para proteger o requerido e as autoridades competentes e para prevenir abusos. Essa caução ou garantia equivalente não deverá constituir um factor de dissuasão indevido do recurso a esses processos.

2 - No caso de, na sequência da apresentação de um pedido nos termos da presente secção, a introdução em livre circulação de mercadorias que envolvam desenhos ou modelos industriais, patentes, esquemas de configuração ou informações não divulgadas ter sido suspensa pelas autoridades aduaneiras com base numa decisão não emanada de uma autoridade judicial ou outra autoridade independente, e o prazo previsto no artigo 55.º ter terminado sem que a autoridade devidamente habilitada tenha concedido uma autorização provisória de introdução em livre circulação, e desde que tenham sido observadas todas as outras condições de importação, o proprietário, importador ou consignatário dessas mercadorias poderá obter a sua introdução em livre circulação mediante o depósito de uma caução de montante suficiente para proteger o titular do direito de qualquer infracção. O pagamento dessa caução não prejudicará qualquer outra medida correctiva à disposição do titular do direito, sendo que a caução será liberada se o titular do direito não exercer o direito de intentar uma acção num prazo razoável.

Artigo 54.º

Notificação da suspensão

O importador e o requerente serão prontamente notificados da suspensão da introdução em livre circulação das mercadorias nos termos do artigo 51.º

Artigo 55.º

Duração da suspensão

Se, num prazo não superior a 10 dias úteis a contar da data em que o requerente foi notificado da suspensão, as autoridades aduaneiras não tiverem sido informadas de que o processo conducente a uma decisão quanto ao fundo da causa foi iniciado por uma outra parte que não o requerido, ou de que a autoridade devidamente habilitada tomou medidas provisórias no sentido de prolongar a suspensão da introdução em livre circulação das mercadorias, estas serão introduzidas em livre circulação, desde que tenham sido observadas todas as outras condições de importação ou exportação; em casos que o justifiquem, este prazo poderá ser prorrogado por mais 10 dias úteis. Caso tenha sido dado início a um processo conducente a uma decisão quanto ao fundo da causa, mediante pedido do requerido, pode proceder-se a uma revisão, incluindo o direito de ser ouvido, mediante pedido do requerido, com vista a decidir-se, num prazo razoável, se essas medidas deverão ser alteradas, revogadas ou confirmadas. Não obstante o que precede, nos casos em que a suspensão da introdução em livre circulação das mercadorias seja executada ou mantida em conformidade com uma medida judicial provisória, aplicar-se-á o disposto no n.º 6 do artigo 50.º

Artigo 56.º

Indemnização do importador e do proprietário das mercadorias

As autoridades competentes serão habilitadas a ordenar ao requerente que pague ao importador, ao consignatário e ao proprietário das mercadorias uma indemnização adequada pelos prejuízos que lhes tenham sido causados em virtude da retenção indevida das mercadorias ou da retenção de mercadorias introduzidas em livre circulação nos termos do artigo 55.º

Artigo 57.º

Direito de inspecção e informação

Sem prejuízo da protecção de informações confidenciais, os Membros habilitarão as autoridades competentes a facultar ao titular do direito a possibilidade de mandar inspeccionar as mercadorias retidas pelas autoridades aduaneiras a fim de fundamentar as alegações do titular do direito. As autoridades competentes serão igualmente habilitadas a facultar ao importador a possibilidade equivalente de mandar inspeccionar essas mercadorias. No caso de ter sido tomada uma deliberação positiva quanto ao fundo de uma causa, os Membros podem habilitar as autoridades competentes a informar o titular do direito dos nomes e endereços do consignante, do importador e do consignatário, bem como da quantidade das mercadorias em questão.

Artigo 58.º

Acção ex officio

Nos casos em que os Membros exijam que as autoridades competentes actuem por sua própria iniciativa e suspendam a introdução em livre circulação de mercadorias em relação às quais tenham obtido elementos de prova prima facie de que envolvem uma infracção a um direito de propriedade intelectual:

a) As autoridades competentes poderão a qualquer momento procurar obter junto do titular do direito informações que possam ajudá-las no exercício desses poderes;

b) O importador e o titular do direito serão prontamente notificados da suspensão; nos casos em que o importador tenha recorrido da suspensão junto das autoridades competentes, essa suspensão estará sujeita, mutatis mutandis, às condições estabelecidas no artigo 55.º;

c) Os Membros só isentarão as autoridades e funcionários públicos da responsabilidade que implica a adopção de medidas correctivas adequadas no caso de terem agido, ou terem tido a intenção de agir, de boa fé.

Artigo 59.º

Medidas correctivas

Sem prejuízo de outros direitos de acção à disposição do titular do direito e sob reserva do direito do requerido de pedir uma revisão por parte de uma autoridade judicial, as autoridades competentes serão habilitadas a ordenar a destruição ou a retirada de mercadorias em infracção de acordo com os princípios estabelecidos no artigo 46.º No que diz respeito às mercadorias apresentadas sob uma marca de contrafacção, as autoridades não autorizarão a reexportação das mercadorias em infracção no seu estado inalterado nem as submeterão a um regime aduaneiro distinto, a não ser em circunstâncias excepcionais.

Artigo 60.º

Importações de minimis

Os Membros podem excluir da aplicação das disposições precedentes as mercadorias sem carácter comercial transportadas em pequenas quantidades na bagagem pessoal dos viajantes ou expedidas em pequenas remessas.

SECÇÃO 5

Processos penais

Artigo 61.º

Os Membros preverão processos penais e penas aplicáveis pelo menos em casos de contrafacção deliberada de uma marca ou de pirataria em relação ao direito de autor numa escala comercial. As sanções possíveis incluirão a prisão e/ou sanções pecuniárias suficientes para constituir um factor dissuasivo, em conformidade com o nível de penas aplicadas a delitos de gravidade correspondente. Nos casos apropriados, as sanções possíveis incluirão igualmente a apreensão, arresto e destruição das mercadorias em infracção e de quaisquer materiais e instrumentos que tenham sido utilizados predominantemente na prática do delito. Os Membros podem prever a aplicação de processos penais e penas correspondentes noutros casos de infracção dos direitos de propriedade intelectual, especialmente quando essas infracções sejam cometidas deliberadamente e numa escala comercial.

PARTE IV

Aquisição e manutenção dos direitos de propriedade intelectual e correspondentes processos inter partes.

Artigo 62.º

1 - Os Membros podem exigir como condição para a aquisição ou manutenção dos direitos de propriedade intelectual previstos nas secções 2 a 6 da parte II a observância de processos e formalidades razoáveis. Esses processos e formalidades deverão ser compatíveis com o disposto no presente Acordo.

2 - Sempre que a aquisição de um direito de propriedade intelectual esteja subordinada à concessão ou registo do direito, os Membros velarão por que os processos de concessão ou de registo permitam, desde que sejam respeitadas as condições essenciais de aquisição do direito, a concessão ou registo do direito num prazo razoável de modo a evitar uma redução injustificada do período de protecção.

3 - O artigo 4.º da Convenção de Paris (1967) aplicar-se-á mutatis mutandis às marcas de serviço.

4 - Os processos relativos à aquisição ou manutenção de direitos de propriedade intelectual e, sempre que a legislação de um Membro preveja esses processos, os processo de revogação administrativa e os processos inter partes como a oposição, a revogação e a anulação, serão regidos pelos princípios gerais estabelecidos nos n.os 2 e 3 do artigo 41.º

5 - As decisões administrativas finais em qualquer dos processos referidos no n.º 4 serão susceptíveis de revisão por uma autoridade judicial ou quase judicial. No entanto, não existirá qualquer obrigação de facultar essa possibilidade de revisão das decisões nos casos de oposição rejeitada ou de revogação administrativa, desde que os motivos na base desses processos possam ser objecto de processos de anulação.

PARTE V

Prevenção e resolução de litígios

Artigo 63.º

Transparência

1 - As disposições legislativas e regulamentares, as decisões judicias finais e as decisões administrativas de aplicação geral postas em vigor por um Membro e relativas ao objecto do presente Acordo (existência, âmbito, aquisição, aplicação efectiva e prevenção do abuso de direitos de propriedade intelectual) serão publicadas ou, caso essa publicação não seja praticável, serão colocadas à disposição do público numa língua nacional, de modo a permitir que os poderes públicos e os titulares dos direitos delas tomem conhecimento. Os acordos relativos ao objecto do presente Acordo que se encontrem em vigor entre os poderes públicos ou um organismo público de um Membro e os poderes públicos ou um organismo público de outro Membro serão igualmente publicados.

2 - Os Membros notificarão as disposições legislativas e regulamentares referidas no n.º 1 ao Conselho TRIPS, a fim de o assistir no exame do funcionamento do presente Acordo. O Conselho procurará minimizar a carga imposta aos Membros para execução desta obrigação e poderá decidir conceder uma dispensa da obrigação de lhe serem notificadas directamente essas disposições se forem bem sucedidas as consultas com a OMPI sobre o estabelecimento de um registo comum que inclua essas disposições legislativas e regulamentares. O Conselho considerará igualmente neste contexto eventuais medidas necessárias no que se refere às notificações por força das obrigações nos termos do presente Acordo decorrentes do disposto no artigo 6.º ter da Convenção de Paris (1967).

3 - Cada Membro deverá estar em condições de fornecer, em resposta a um pedido escrito de outro Membro, informações do tipo referido no n.º 1. Um Membro que tenha motivos para crer que uma decisão judicial ou administrativa específica ou um acordo bilateral em matéria de direitos de propriedade intelectual afecta os seus direitos ao abrigo do presente Acordo pode igualmente solicitar por escrito que lhe seja facultado o acesso a essas decisões judiciais ou administrativas específicas ou acordos bilaterais, ou lhe sejam fornecidas informações suficientemente pormenorizadas sobre os mesmos.

4 - Nenhuma disposição dos n.os 1, 2 e 3 obrigará os Membros a divulgar informações confidenciais que possam constituir um obstáculo à aplicação da lei ou de qualquer outro modo ser contrárias ao interesse público, ou que possam prejudicar os interesses comerciais legítimos de determinadas empresas, públicas ou privadas.

Artigo 64.º

Resolução de litígios

1 - As disposições dos artigos XXII e XXIII do GATT de 1994, tal como previstas e aplicadas pelo Memorando de Entendimento sobre a Resolução de Litígios, serão aplicáveis às consultas e à resolução de litígios ao abrigo do presente Acordo, salvo disposição expressa em contrário deste.

2 - As alíneas b) e c) do n.º 1 do artigo XXIII do GATT de 1994 não serão aplicáveis à resolução de litígios ao abrigo do presente Acordo durante um período de cinco anos a contar da data de entrada em vigor do Acordo OMC.

3 - Durante o período referido no n.º 2, o Conselho TRIPS examinará o âmbito e modalidades das queixas do tipo previsto nas alíneas b) e c) do n.º 1 do artigo XXIII do GATT de 1994 formuladas em conformidade com o presente Acordo e apresentará as suas recomendações à Conferência Ministerial para aprovação. Qualquer decisão da Conferência Ministerial de aprovar essas recomendações ou de prolongar o período referido no n.º 2 só poderá ser tomada por consenso e as recomendações aprovadas produzirão efeitos para todos os Membros sem qualquer outro processo formal de aceitação.

PARTE VI

Disposições transitórias

Artigo 65.º

Disposições transitórias

1 - Sob reserva do disposto nos n.os 2, 3 e 4, nenhum Membro será obrigado a aplicar as disposições do presente Acordo antes do termo de um período geral de um ano após a data de entrada em vigor do Acordo OMC.

2 - Um país em desenvolvimento Membro pode prorrogar por um novo período de quatro anos a data de aplicação das disposições do presente Acordo, conforme definida no n.º 1, com excepção das previstas nos artigos 3.º, 4.º e 5.º

3 - Qualquer outro Membro que se encontre em processo de transição de uma economia planificada para uma economia de mercado baseada na livre empresa, e que esteja a proceder a uma reforma estrutural do seu sistema de propriedade intelectual e enfrente problemas especiais a nível da preparação e implementação das disposições legislativas e regulamentares em matéria de propriedade intelectual, pode igualmente beneficiar de um período de prorrogação conforme previsto no n.º 2.

4 - Na medida em que um país em desenvolvimento Membro seja obrigado por força do presente Acordo a estender a protecção das patentes de produtos a domínios da tecnologia que não podem ser objecto dessa protecção no seu território na data de aplicação geral do presente Acordo a esse Membro, conforme definido no n.º 2, o Membro pode adiar por um período adicional de cinco anos a aplicação das disposições em matéria de patentes de produtos previstas na secção V da parte II a esses domínios da tecnologia.

5 - Um Membro que recorra a um período transitório nos termos dos n.os 1, 2, 3 ou 4 velará por que as eventuais alterações introduzidas durante esse período a nível das suas disposições legislativas e regulamentares e das suas práticas não resultem num nível inferior de compatibilidade com o disposto no presente Acordo.

Artigo 66.º

Países menos desenvolvidos Membros

1 - Atendendo às necessidades e imperativos especiais dos países menos desenvolvidos Membros, às suas limitações económicas, financeiras e administrativas e à sua necessidade de flexibilidade para o desenvolvimento de uma base tecnológica viável, esses Membros não serão obrigados a aplicar as disposições do presente Acordo, com excepção das previstas nos artigos 3.º, 4 e 5.º, por um período de 10 anos a contar da data de aplicação, tal como definida no n.º 1 do artigo 65.º Mediante pedido devidamente fundamentado apresentado por um país menos desenvolvido Membro, o Conselho TRIPS autorizará prorrogações desse prazo.

2 - Os países desenvolvidos Membros providenciarão incentivos para as empresas e instituições do seu território com vista a promover e incentivar a transferência de tecnologia para os países menos desenvolvidos Membros, a fim de lhes permitir desenvolver uma base tecnológica sólida e viável.

Artigo 67.º

Cooperação técnica

A fim de facilitar a implementação do presente Acordo, os países desenvolvidos Membros criarão condições para uma cooperação técnica e financeira a favor dos países em desenvolvimento e menos desenvolvidos Membros, mediante pedido e em condições acordadas mutuamente. Essa cooperação incluirá a assistência a nível da elaboração das disposições legislativas e regulamentares em matéria de protecção e aplicação efectiva dos direitos de propriedade intelectual e de prevenção do seu abuso, bem como o apoio relativamente ao estabelecimento ou reforço de gabinetes e agências nacionais competentes nesta matéria, incluindo a formação de pessoal.

PARTE VII

Disposições institucionais; disposições finais

Artigo 68.º

Conselho dos Aspectos dos Direitos de Propriedade Intelectual Relacionados com o Comércio

O Conselho TRIPS acompanhará a aplicação do presente Acordo, e nomeadamente a observância por parte dos Membros das obrigações que para eles decorrem do seu dispositivo, facultando aos Membros a possibilidade de iniciarem consultas sobre questões relativas aos aspectos dos direitos de propriedade intelectual relacionados com o comércio. O Conselho desempenhará quaisquer outras funções que lhe sejam atribuídas pelos Membros, devendo nomeadamente prestar todo o tipo de assistência solicitada por estes no âmbito dos processos de resolução de litígios. No desempenho das suas funções, o Conselho TRIPS pode consultar qualquer fonte que considere adequada e procurar obter informações junto dessa fonte. Em consulta com a OMPI, o Conselho procurará estabelecer, no prazo de um ano a contar da sua primeira reunião, disposições adequadas relativamente à cooperação com os órgãos dessa organização.

Artigo 69.º

Cooperação internacional

Os Membros comprometem-se a cooperar entre si com vista à eliminação do comércio internacional de mercadorias que infrinja os direitos de propriedade intelectual. Para o efeito, os Membros estabelecerão e darão a conhecer pontos de contacto nas respectivas administrações e prontificar-se-ão a trocar informações sobre o comércio de mercadorias em infracção. Os Membros promoverão, em especial, o intercâmbio de informações e a cooperação entre autoridades aduaneiras no que diz respeito ao comércio de mercadorias apresentadas sob uma marca de contrafacção e de mercadorias pirateadas em infracção ao direito de autor.

Artigo 70.º

Protecção dos objectos existentes

1 - O presente Acordo não cria obrigações relativamente a actos ocorridos antes da data de aplicação do Acordo ao Membro em questão.

2 - Salvo disposição em contrário do presente Acordo, o presente Acordo estabelece obrigações relativamente a todos os objectos existentes à data de aplicação do Acordo ao Membro em questão, e que sejam protegidos nesse Membro na referida data, ou que satisfaçam ou venham posteriormente a satisfazer os critérios de protecção definidos no presente Acordo. No que diz respeito ao presente número e aos n.os 3 e 4, as obrigações em matéria de direito de autor relativamente a obras existentes serão definidas unicamente nos termos do artigo 18.º da Convenção de Berna (1971), e as obrigações em matéria de direitos dos produtores de fonogramas e dos artistas intérpretes ou executantes sobre os fonogramas existentes serão definidas unicamente nos termos do artigo 18.º da Convenção de Berna (1971), tal como aplicáveis ao abrigo do n.º 6 do artigo 14.º do presente Acordo.

3 - Não haverá qualquer obrigação de restabelecer a protecção de objectos que, à data de aplicação do presente Acordo ao Membro em questão, tenham caído no domínio público.

4 - No que diz respeito a quaisquer actos relativos a objectos específicos em que sejam incorporados objectos protegidos que passem a ser considerados em infracção nos termos da legislação adoptada em conformidade com o presente Acordo e que tenham sido iniciados antes da data de aceitação do Acordo OMC por esse Membro, ou em relação aos quais tenha sido realizado um investimento considerável, antes dessa data, qualquer Membro pode prever uma limitação das medidas correctivas à disposição do titular do direito no que se refere à prossecução desses actos após a data de aplicação do presente Acordo em relação a esse Membro. Nesses casos, o Membro deve no entanto prever pelo menos o pagamento de uma remuneração equitativa.

5 - Um Membro não será obrigado a aplicar o disposto no artigo 11.º e no n.º 4 do artigo 14.º relativamente aos originais ou cópias adquiridos antes da data de aplicação do presente Acordo em relação a esse Membro.

6 - Os Membros não serão obrigados a aplicar o disposto no artigo 31.º, nem o requisito previsto no n.º 1 do artigo 27.º, segundo o qual os direitos de patente poderão ser obtidos sem discriminação quanto ao domínio da tecnologia, em relação à utilização sem o consentimento do titular do direito, sempre que a autorização dessa utilização tenha sido concedida pelos poderes públicos antes da data em que o presente Acordo se tornou conhecido.

7 - No caso de direitos de propriedade intelectual em relação aos quais a protecção está subordinada ao registo, será permitida a alteração dos pedidos de protecção pendentes na data da aplicação do presente Acordo em relação ao Membro em questão, com vista a reivindicar uma protecção acrescida ao abrigo do disposto no presente Acordo. Essas alterações não incluirão elementos novos.

8 - Sempre que, a partir da data de entrada em vigor do Acordo OMC, um Membro não conceda a protecção ao abrigo de uma patente em relação a produtos farmacêuticos e a produtos químicos para a agricultura de acordo com as suas obrigações nos termos do artigo 27.º, esse Membro:

a) Não obstante as disposições da parte VI, facultará a partir da data de entrada em vigor do Acordo OMC, um meio para depósito dos pedidos de patentes relativos a essas invenções;

b) Aplicará a esses pedidos, a partir da data de aplicação do presente Acordo, os critérios de patenteabilidade nele definidos, como se esses critérios fossem aplicados na data de depósito nesse Membro ou, caso seja possível obter uma prioridade e a mesma seja reivindicada, na data de prioridade do pedido; e

c) Concederá a protecção ao abrigo de uma patente em conformidade com o disposto no presente Acordo a partir da concessão da patente e durante o restante período de duração da patente, calculado a partir da data de depósito conforme previsto no artigo 33.º do presente Acordo, em relação aos pedidos desse tipo que satisfaçam os critérios de protecção referidos na alínea b).

9 - Sempre que um produto seja objecto de um pedido de patente num Membro em conformidade com o disposto na alínea a) do n.º 8, serão concedidos direitos de comercialização exclusivos, não obstante o disposto na parte VI, por um período de cinco anos após obtenção da aprovação de comercialização nesses Membros ou até que uma patente de produto seja concedida ou rejeitada nesse Membro, sendo de considerar o período mais curto, desde que, na sequência da entrada em vigor do Acordo OMC, tenha sido depositado um pedido de patente e concedida uma patente em relação a esse produto noutro Membro e tenha sido obtida uma aprovação de comercialização nesse outro Membro.

Artigo 71.º

Revisão e emendas

1 - O Conselho TRIPS procederá a uma revisão da implementação do presente Acordo após o termo do período transitório referido no n.º 2 do artigo 65.º Tendo em conta a experiência adquirida com a sua implementação, o Conselho procederá à revisão do Acordo dois anos após essa data, e posteriormente a intervalos idênticos. O Conselho poderá igualmente proceder a revisões na presença de dados novos relevantes que justifiquem a alteração ou emenda do presente Acordo.

2 - As emendas cuja única finalidade consista na adaptação a níveis superiores de protecção dos direitos de propriedade intelectual, alcançados e em vigor no âmbito de outros acordos multilaterais e aceites nos termos desses acordos por todos os Membros da OMC, poderão ser submetidos à Conferência Ministerial com vista à adopção de medidas em conformidade com o disposto no n.º 6 do artigo X do Acordo OMC, com base numa proposta consensual do Conselho TRIPS.

Artigo 72.º

Reservas

Não poderão ser aceites reservas relativamente a qualquer disposição do presente Acordo sem o consentimento dos outros Membros.

Artigo 73.º

Excepções por razões de segurança

Nenhuma disposição do presente Acordo poderá ser interpretada no sentido de:

a) Exigir que um Membro forneça quaisquer informações cuja divulgação considere contrária aos seus interesses essenciais em matéria de segurança;

b) Impedir que um Membro tome quaisquer medidas que considere necessárias para a protecção dos seus interesses essenciais em matéria de segurança:

i) Relativamente a materiais fissíveis ou aos materiais a partir dos quais são obtidos;

ii) Relativamente ao tráfico de armas, munições e material de guerra e ao tráfico de outras mercadorias e materiais efectuado directa ou indirectamente para efeitos de aprovisionamento de estabelecimentos militares;

iii) Aplicadas em período de guerra ou noutra situação de emergência a nível das relações internacionais; ou

c) Impedir que um Membro tome quaisquer medidas em prossecução das suas obrigações ao abrigo da Carta das Nações Unidas para a manutenção da paz e da segurança internacionais.

ANEXO 2

MEMORANDO DE ENTENDIMENTO SOBRE AS REGRAS E PROCESSOS QUE REGEM A RESOLUÇÃO DE LITÍGIOS

Os Membros acordam o seguinte:

Artigo 1.º

Âmbito

1 - As normas e processos previstos no presente Memorando são aplicáveis aos litígios que sejam objecto de pedidos nos termos das disposições de consulta e resolução de litígios previstas nos acordos enumerados no Apêndice 1 do presente Memorando (adiante designados como «acordos abrangidos»). As regras e processos previstos no presente Memorando são igualmente aplicáveis às consultas e resolução de litígios entre Membros referentes aos seus direitos e obrigações previstos no Acordo que institui a Organização Mundial do Comércio (referido no Memorando como o «Acordo OMC») e no presente Memorando, tomados isoladamente ou conjugados com qualquer outro acordo abrangido.

2 - As regras e processos do presente Memorando são aplicáveis sem prejuízo das normas e processos especiais ou complementares sobre resolução de litígios previstos nos acordos abrangidos, tal como identificados no Apêndice 2 do presente Memorando. Caso haja divergências entre as normas e processos previstos no presente Memorando e as normas e processos especiais ou complementares previstos no Apêndice 2, estas últimas prevalecem sobre as primeiras. Nos diferendos que envolvam normas e processos previstos em mais do que um dos acordos abrangidos, se se verificar um conflito entre as normas e processos especiais ou complementares de acordos que estão a ser revistos, e caso as partes em litígio não consigam chegar a acordo sobre as normas e processos no prazo de 20 dias a contar da criação do painel, o Presidente do Órgão da Resolução de Litígios previsto no n.º 1 do artigo 2.º (referido no presente Memorando como «ORL»), em consulta com as partes em litígio, definirá as normas e processos a respeitar no prazo de 10 dias a contar da apresentação de um pedido nesse sentido por um dos Membros. O Presidente reger-se-á pelo princípio de que as normas e processos especiais ou complementares devem ser aplicados sempre que possível e de que as normas e processos previstos no presente Memorando devem ser aplicados na medida do necessário para evitar conflitos.

Artigo 2.º

Aplicação

1 - É criado um Órgão de Resolução de Litígios para aplicar estas normas e processos e, salvo disposição em contrário num acordo abrangido, as disposições de consulta e resolução de litígios previstas nos acordos abrangidos. Nessa conformidade, o ORL terá competência para criar painéis, adoptar os relatórios dos painéis e do Órgão de Recurso, fiscalizar a execução das decisões e recomendações e autorizar a suspensão das concessões e outras obrigações nos termos previstos nos acordos abrangidos. No que respeita aos litígios que surjam no âmbito de um acordo abrangido que seja um acordo comercial plurilateral, o termo «Membro» utilizado no presente Memorando referir-se-á apenas aos Membros que sejam partes no Acordo Comercial Plurilateral relevante. Nos casos em que o ORL aplica as disposições de resolução de litígios de um acordo comercial plurilateral, apenas podem participar nas decisões ou acções adoptadas pelo ORL relativas a esse litígio os Membros que sejam partes naquele Acordo.

2 - O ORL informará os conselhos e comités relevantes da OMC de quaisquer desenvolvimentos nos litígios relacionados com disposições dos respectivos acordos abrangidos.

3 - O ORL reunir-se-á sempre que necessário para desempenhar as suas funções dentro dos prazos estabelecidos no presente Memorando.

4 - Nos casos em que as normas e processos do presente Memorando prevejam que o ORL adopte uma decisão, a mesma será adoptada por consenso (ver nota 1).

(nota 1) Considera-se que o ORL decidiu por consenso sobre uma questão que lhe foi apresentada se nenhum membro, presente na reunião do ORL quando a decisão foi adoptada, contestar formalmente a decisão proposta.

Artigo 3.º

Disposições gerais

1 - Os Membros reiteram a sua adesão aos princípios de resolução de litígios que têm sido aplicados ao abrigo dos artigos 22.º e 23.º do GATT de 1947, bem como às normas e processos previstos no presente Memorando.

2 - O sistema de resolução de litígios da OMC é um elemento fulcral de garantia da segurança e previsibilidade do sistema multilateral de comércio. Os Membros reconhecem que o mesmo permite preservar os direitos e obrigações dos Membros previstos nos acordos abrangidos e clarificar as disposições desses acordos em conformidade com as normas de interpretação do direito público internacional. As recomendações e decisões do ORL não podem aumentar ou diminuir os direitos e obrigações previstos nos acordos abrangidos.

3 - A pronta resolução de situações em que um Membro considera que um benefício que lhe é devido directa ou indirectamente ao abrigo de acordos abrangidos está a ser prejudicado por medidas adoptadas por outro Membro é essencial para que a OMC exerça as suas funções de um modo eficaz e para a manutenção de um equilíbrio adequado entre os direitos e obrigações dos Membros.

4 - As recomendações ou decisões adoptadas pelo ORL destinar-se-ão a conseguir uma resolução satisfatória da questão em conformidade com os direitos e obrigações previstos no presente Memorando e nos acordos abrangidos.

5 - Todas as soluções de questões que sejam formalmente levantadas ao abrigo das disposições de consulta de litígios dos acordos abrangidos, incluindo a nomeação de árbitros, serão conformes a esses acordos e não anularão ou prejudicarão os benefícios devidos a qualquer Membro por força desses acordos, nem impedirão a realização de qualquer objectivo desses mesmos acordos.

6 - As soluções mutuamente acordadas para questões formalmente levantadas ao abrigo das disposições de consulta e resolução de litígios dos acordos abrangidos serão notificadas ao ORL e aos conselhos e comités relevantes, onde qualquer membro pode colocar uma questão relacionada com a matéria em discussão.

7 - Antes de apresentar um pedido, o Membro verificará se qualquer pedido apresentado no âmbito desses processos é fundamentado. O objectivo do sistema de resolução de litígios é o de obter uma solução positiva para um litígio.

É preferível uma solução mutuamente aceitável para as partes e conforme aos acordos abrangidos. Na falta de uma solução mutuamente acordada, o objectivo imediato do sistema de resolução de litígios é normalmente o de assegurar a supressão das medidas em causa, caso se verifique que as mesmas são incompatíveis com as disposições de qualquer um dos acordos abrangidos. Só se deve recorrer à regra da compensação se a imediata abolição da medida for impraticável e como uma medida provisória, na pendência da abolição da medida que é incompatível com um acordo abrangido. O último recurso previsto no presente Memorando de que dispõe um Membro consiste na possibilidade de o mesmo suspender a aplicação de concessões ou outras obrigações previstas nos acordos abrangidos numa base discriminatória em relação a outro Membro, sob reserva de autorização pelo ORL de tais medidas.

8 - Sempre que se verifique uma violação das obrigações previstas num acordo abrangido, a acção é considerada prima facie como um caso de anulação ou prejuízo. Isto significa que existe normalmente uma presunção de que uma violação das regras tem um efeito negativo nos outros Membros partes contratantes nesse acordo abrangido e, em tais casos, é o Membro contra o qual foi apresentada a queixa que tem o ónus de provar o contrário.

9 - As disposições do presente Memorando não prejudicam o direito de os Membros procurarem uma interpretação com autoridade das disposições de um acordo abrangido, através de uma decisão adoptada no âmbito do Acordo OMC ou de um acordo abrangido que seja um acordo comercial plurilateral.

10 - Fica acordado que os pedidos de conciliação e a utilização dos processos de resolução de litígios não devem ser considerados actos contenciosos e, caso surja um litígio, todos os Membros intervirão nesses processos de boa fé com vista a resolver o litígio. Fica igualmente acordado que os pedidos e reconvenções relativos a questões distintas não devem ser ligados.

11 - O presente Memorando é aplicável apenas aos novos pedidos de consulta, ao abrigo das disposições de consulta dos acordos abrangidos, apresentados após a data de entrada em vigor do Acordo OMC. No que se refere aos litígios relativamente aos quais foi solicitada a abertura de um processo de consultas, ao abrigo do GATT de 1947 ou ao abrigo de qualquer outro acordo anterior aos acordos abrangidos, antes da data de entrada em vigor do Acordo OMC, as normas e processos de resolução de litígios em vigor imediatamnte antes da data de entrada em vigor do Acórdo AMC continuam a ser aplicáveis (ver nota 2).

12 - Sem prejuízo do disposto no n.º 11, caso uma queixa baseada em qualquer um dos acordos abrangidos for apresentada por um país em desenvolvimento Membro contra um país desenvolvido Membro, a parte queixosa tem o direito de invocar, em alternativa às disposições previstas nos artigos 4.º, 5.º, 6.º e 12.º do presente Memorando, as disposições correspondentes da Decisão de 5 de Abril de 1966 (BISD 14S/18), excepto nos casos em que o painel considere que o prazo previsto no n.º 7 da decisão é demasiado curto para que possa apresentar o seu relatório, podendo, caso a parte queixosa dê o seu acordo, prorrogar-se o referido prazo. Caso exista uma divergência entre as normas e processos dos artigos 4.º, 5.º, 6.º e 12.º e as normas e processos correspondentes da decisão, estas últimas prevalecem sobre as primeiras.

(nota 2) Esta disposição é igualmente aplicável aos litígios relativamente aos quais não foram adoptados ou totalmente executados relatórios de painéis.

Artigo 4.º

Consultas

1 - Os Membros reiteram o seu empenhamento num reforço e melhoramento da eficácia dos processos de consulta utilizados pelos membros.

2 - Cada Membro compromete-se a estar receptivo e a criar oportunidades de consultas relativamente a quaisquer pedidos apresentados por outro Membro sobre medidas que afectem o funcionamento de qualquer acordo abrangido adoptadas no território do primeiro (ver nota 3).

3 - Se um pedido de consultas for apresentado nos termos previstos num acordo abrangido, o membro ao qual é apresentado o pedido deve, excepto se as partes acordarem em contrário, responder ao pedido no prazo de 10 dias a contar da data da sua recepção e deve iniciar consultas, de boa fé, dentro de um prazo não superior a 30 dias a contar da data de recepção do pedido, com vista a chegarem a uma solução mutuamente satisfatória. Caso o Membro não responda no prazo de 10 dias a contar da data de recepção do pedido, ou não der início a consultas dentro de um prazo não superior a 30 dias, ou no prazo mutuamente acordado, após a data de recepção do pedido, o Membro que apresentou o pedido de consultas pode requerer imediatamente a criação de um painel.

4 - Todos estes pedidos de consultas devem ser notificados ao ORL e aos conselhos e comités relevantes pelo Membro que solicita as consultas. Qualquer pedido de consultas deve ser apresentado por escrito e deve ser fundamentado, incluindo a identificação das medidas em questão e a base jurídica do pedido.

5 - Durante o processo de consultas realizado nos termos do disposto num acordo abrangido, antes de recorrerem a outro tipo de medidas previstas no presente Memorando os Membros deverão tentar obter uma solução satisfatória da questão.

6 - As consultas serão confidenciais e não prejudicarão os direitos de qualquer Membro em fases processuais posteriores.

7 - Se as consultas não permitirem resolver um litígio no prazo de 60 dias a contar da data de recepção do pedido de consultas, a parte queixosa pode solicitar a criação de um painel. A parte queixosa pode solicitar a criação de um painel antes de decorrido o prazo de 60 dias caso as partes em consulta considerem conjuntamente que as consultas não permitirão resolver o litígio.

8 - Em casos de urgência, incluindo aqueles que se referem a bens perecíveis, os Membros iniciarão consultas num prazo não superior a 10 dias a contar da data de recepção do pedido. Se as consultas não permitirem resolver o diferendo no prazo de 20 dias a contar da data de recepção do pedido, a parte queixosa pode requerer a criação de um painel.

9 - Em casos de urgência, incluindo aqueles que se referem a bens perecíveis, as partes em litígio, os painéis e o Órgão de Recurso envidarão todos os esforços para acelerar o processo o máximo possível.

10 - Durante as consultas os Membros prestarão especial atenção aos problemas e interesses específicos dos países Membros em desenvolvimento.

11 - Caso um outro Membro considere que tem um interesse comercial substancial nas consultas em curso nos termos do n.º 1 do artigo XXII do GATT de 1994, do n.º 1 do artigo XXII do GATS, ou das disposições correspondentes de outros acordos abrangidos (ver nota 4), esse Membro pode notificar os Membros em consulta e o ORL, no prazo de 10 dias a contar da data de divulgação do pedido de consultas nos termos do referido artigo, do seu desejo de participar nas consultas. Esse Membro será incluído nas consultas desde que o Membro a quem foi apresentado o pedido de consultas concorde que a alegação de interesse substancial é fundamentada. Nesse caso, informarão de tal facto o ORL. Caso o pedido de participação nas consultas não seja aceite, o Membro em causa poderá solicitar a abertura de um processo de consultas nos termos do n.º 1 do artigo XXII ou do n.º 1 do artigo XXIII do GATT de 1994, do n.º 1 do artigo XXII ou do n.º 1 do artigo XXIII do GATS, ou das disposições correspondentes de outros acordos abrangidos.

(nota 3) Nos casos em que as disposições de qualquer acordo abrangido relativas a medidas adoptadas pelos governos locais ou regionais ou por autoridades no território de um membro contenham disposições diferentes das previstas no presente número, as disposições do referido acordo abrangido prevalecem sobre estas.

(nota 4) As disposições correspondentes sobre consultas previstas nos acordos abrangidos são as seguintes: Acordo sobre Agricultura, artigo 19.º; Acordo sobre Medidas Sanitárias e Fitossanitárias, n.º 1 do artigo 11.º; Acordo sobre Têxteis e Vestuário, n.º 4 do artigo 8.º; Acordo sobre Barreiras Técnicas ao Comércio, n.º 1 do artigo 14.º; Acordo sobre Medidas de Investimento Relacionadas com o Comércio, artigo 8.º; Acordo sobre Medidas Antidumping, n.º 2 do artigo 17.º; Acordo sobre o Valor Aduaneiro, n.º 2 do artigo do artigo 19.º; Acordo sobre a Inspecção antes da expedição, artigo 7.º; Acordo sobre Regras de Origem, artigo 7.º; Acordo sobre Procedimentos em Matéria de Licenças de Importação, artigo 6.º; Acordo sobre Subsídios e Medidas de Compensação, artigo 30.º; Acordo Relativo às Salvaguardas, artigo 13.º; Acordo sobre os Aspectos dos Direitos de Propriedade Intelectual Relacionados com o Comércio, n.º 1 ao artigo 64.º; quaisquer disposições correspondentes sobre consultas previstas nos acordos comerciais plurilaterais, tal como definidas pelos órgãos competentes de cada acordo e tal como notificadas ao ORL.

Artigo 5.º

Bons ofícios, conciliação e mediação

1 - Os bons ofícios, a conciliação e a mediação são processos a accionar voluntariamente, caso as partes em litígio acordem nesse sentido.

2 - Os processos relativos aos bons ofícios, à conciliação e à mediação, e em especial as posições adoptadas pelas partes em litígio durante esses processos, serão confidenciais, e não prejudicarão os direitos das partes em fases processuais posteriores.

3 - Os bons ofícios, a conciliação ou a mediação podem ser solicitados em qualquer altura por qualquer parte num diferendo, podendo ter início a qualquer momento e ser igualmente extintos a qualquer momento. Logo que os processos relativos aos bons ofícios, à conciliação ou à mediação tenham terminado, a parte queixosa pode então prosseguir com um pedido para a criação de um painel.

4 - Caso os processos de bons ofícios, conciliação ou mediação tenham sido iniciados no prazo de 60 dias a contar da data de recepção de um pedido de consultas, a parte queixosa não pode solicitar a criação de um painel antes de decorrido um prazo de 60 dias a contar da data de recepção do pedido de consultas. A parte queixosa pode solicitar a criação de um painel antes de decorrido o prazo de 60 dias caso as partes em litígio considerem ambas que o processo de bons ofícios, conciliação ou mediação não conseguiu resolver o diferendo.

5 - Caso as partes em litígio acordem nesse sentido, os processos de bons ofícios, conciliação ou mediação podem prosseguir, paralelamente aos trâmites do processo do painel.

6 - O Director-Geral pode, agindo a título oficioso, oferecer os seus bons ofícios, conciliação ou mediação com vista a ajudar os Membros a resolver um litígio.

Artigo 6.º

Criação de painéis

1 - Se a parte queixosa assim o solicitar, será criado um painel o mais tardar na reunião do ORL seguinte à reunião em que o pedido aparece pela primeira vez na ordem de trabalhos do ORL, a menos que nessa reunião aquele órgão decida, por consenso, não criar um painel (ver nota 5).

2 - O pedido de criação de um painel deve ser apresentado por escrito. Esse pedido deve informar da realização ou não de consultas, identificar as medidas específicas em questão e apresentar uma breve síntese da base jurídica da queixa que permita uma percepção clara do problema. Caso o requerente solicite a criação de um painel com termos de referência diferentes dos normais, o pedido escrito deve incluir o texto proposto dos termos de referência especiais.

(nota 5) Se a parte queixosa assim o requerer, será convocada uma reunião do ORL para este efeito no prazo de 15 dias a contar da apresentação do pedido, desde que a reunião tenha sido anunciada com um pré-aviso de pelo menos 10 dias.

Artigo 7.º

Atribuições dos painéis

1 - Os painéis terão as seguintes atribuições, salvo se as partes em litígio acordarem em contrário no prazo de 20 dias a contar da criação do painel:

«Analisar, à luz das disposições relevantes do (nome do ou dos acordos abrangidos citados pelas partes em litígio), a questão apresentada ao ORL por (nome da parte) no documento... e chegar a conclusões que permitam assistir o ORL na adopção das recomendações ou das decisões previstas nesse ou nesses acordos.»

2 - Os painéis respeitarão as disposições relevantes de qualquer ou quaisquer acordos abrangidos citados pelas partes em litígio.

3 - Ao criar um painel, o ORL pode autorizar o seu presidente a definir as atribuições do painel, em consulta com as partes em litígio, sem prejuízo do disposto no n.º 1. As atribuições definidas desta forma devem ser transmitidas a todos os Membros. Caso sejam acordadas atribuições diferentes das normais, qualquer Membro pode levantar uma questão relacionada com as mesmas no ORL.

Artigo 8.º

Composição dos painéis

1 - Os painéis serão compostos por indivíduos altamente qualificados, funcionários governamentais ou não, incluindo pessoas que tenham feito parte de um painel ou que tenham apresentado uma questão ao mesmo, que tenham intervindo como representantes de um Membro ou de uma Parte Contratante no GATT de 1947 ou como representante no conselho ou comité de qualquer acordo abrangido ou de um seu acordo predecessor, ou no Secretariado, bem como pessoas que tenham publicado obras sobre direito ou política comercial internacional, ou que tenham sido funcionários superiores de um departamento de política comercial de um Membro.

2 - Os membros do painel serão seleccionados tendo em vista a sua independência, uma formação suficientemente diversa e um amplo leque de experiências.

3 - Os cidadãos de países Membros cujos governos (ver nota 6) são partes no litígio ou partes terceiras, tal como definidas no n.º 2 do artigo 10.º, não devem ser membros do painel que esteja a analisar esse diferendo, a menos que as partes em litígio acordem em contrário.

4 - Para ajudar a seleccionar os membros do painel, o Secretariado disporá de uma lista indicativa de personalidades, funcionários governamentais ou não, que possuam as qualificações referidas no n.º 1, a partir da qual poderão ser escolhidos os membros do painel. Esta lista incluirá o grupo de pessoas susceptíveis de serem membros de um painel, que não são funcionários governamentais, estabelecido em 30 de Novembro de 1984 (BISD 31S/9), bem como outros grupos e listas indicativas estabelecidos ao abrigo de qualquer um dos acordos abrangidos, e manterá os nomes incluídos nesses grupos ou listas indicativas aquando da entrada em vigor do Acordo OMC. Os países Membros podem sugerir, periodicamente, nomes de indivíduos, funcionários governamentais ou não, para inclusão na lista indicativa, transmitindo as devidas informações sobre os seus conhecimentos em matéria de comércio internacional e sobre os sectores ou matérias regulados pelos acordos abrangidos. Estes nomes serão acrescidos na lista, após aprovação do ORL. Relativamente a cada um dos indivíduos que constam da lista, será indicada na mesma a sua experiência ou peritagem nos sectores ou matérias regulados pelos acordos abrangidos.

5 - Os painéis serão compostos por três pessoas, salvo se as partes em litígio acordarem, no prazo de 10 dias a contar da criação do painel, num painel composto por cinco pessoas. Os países Membros serão imediatamente informados da composição do painel.

6 - O Secretariado proporá nomes para o painel às partes em litígio. As partes em litígio só se poderão opor às nomeações se apresentarem razões fundamentadas para tal.

7 - Caso não se chegue a um acordo sobre a composição de um painel no prazo de 20 dias a contar da data de criação do mesmo, o Director-Geral, a pedido de qualquer uma das partes e em consulta com o Presidente do ORL e com o presidente do conselho ou comité relevante, determinará a composição do painel, nomeando os membros do mesmo que considere mais adequados, em conformidade com as normas ou procedimentos especiais ou complementares previstos nos acordos abrangidos que são objecto do diferendo, após consulta das partes em litígio. O Presidente do ORL informará os países membros da composição do painel formado deste modo o mais tardar 10 dias a contar da data em que recebeu o pedido.

8 - Os países Membros comprometem-se, regra geral, a autorizar a participação de funcionários dos seus governos nos painéis.

9 - Os membros de um painel agirão a título individual e não como representantes governamentais nem como representantes de qualquer organização. Os países Membros não poderão, pois, dar-lhes instruções nem procurar influenciá-los no que respeita às questões em discussão no painel.

10 - Quando se verificar um litígio entre um país Membro em desenvolvimento e um país Membro desenvolvido, o painel deve, caso o país Membro em desenvolvimento assim o requeira, incluir pelo menos um indivíduo oriundo de um país Membro em desenvolvimento.

11 - As despesas dos membros do painel, incluindo as despesas de viagem e as ajudas de custo, serão cobertas pelo orçamento da OMC, em conformidade com os critérios a adoptar pelo Conselho Geral, com base nas recomendações do Comité de Orçamento, Finanças e Administração.

(nota 6) Nos casos em que uniões aduaneiras ou mercados comuns são partes num diferendo, esta é aplicável aos cidadãos de todos os países membros da união aduaneira ou do mercado comum.

Artigo 9.º

Procedimentos em caso de multiplicidade de queixosos

1 - Nos casos em que mais de um Membro requer a criação de um painel para a análise da mesma questão, pode ser criado um único painel para estudar essas queixas, tendo-se em devida conta os direitos de todos os membros interessados. Sempre que tal for viável, deve ser criado um único painel para analisar essas queixas.

2 - Este painel organizará os seus trabalhos e apresentará as suas conclusões ao ORL de um modo que não prejudique os direitos de que gozariam as partes em litígio se as diversas queixas tivessem sido analisadas por painéis diferentes. Se uma das partes em litígio assim o requerer, o painel apresentará relatórios separados sobre os litígios em causa. Os pedidos escritos de cada um dos queixosos serão colocados ao dispor dos outros queixoso, os quais terão o direito de estar presentes quando os outros apresentam as suas observações ao painel.

3 - Se for criado mais do que um painel para analisar queixas relacionadas com a mesma questão, os diversos painéis deverão ser constituídos, na medida do possível, pelas mesmas pessoas, e o calendário processual dos diversos painéis deve ser igualmente harmonizado.

Artigo 10.º

Partes terceiras

1 - Durante o processo do painel, serão tomados em consideração os interesses das partes em litígio e os interesses de outros Membros, no âmbito do acordo abrangido que é objecto do litígio.

2 - Qualquer Membro que tenha um interesse substancial numa questão em análise num painel e que tenha notificado esse seu interesse ao ORL (adiante designado como «parte terceira») terá oportunidade de ser ouvido pelo painel e de apresentar as suas observações por escrito ao mesmo. Essas observações serão igualmente transmitidas às partes em litígio e deverão constar do relatório do painel.

3 - As partes terceiras receberão as observações apresentadas pelas partes em litígio na primeira reunião do painel.

4 - Se uma parte terceira considerar que uma medida em análise num painel anula ou prejudica os benefícios que lhe são devidos ao abrigo de qualquer acordo abrangido, esse membro pode recorrer aos procedimentos normais de resolução de litígios previstos no presente Memorando. Sempre que possível, esse litígio será analisado pelo painel inicial.

Artigo 11.º

Função dos painéis

A função dos painéis é a de assistir o ORL no desempenho das suas atribuições previstas no presente Memorando e nos acordos abrangidos. Nessa conformidade, o painel deve fazer uma apreciação objectiva da questão que lhe foi colocada, incluindo uma avaliação objectiva dos factos em disputa e da aplicabilidade e cumprimento dos acordos abrangidos relevantes, bem como chegar a conclusões que ajudem o ORL a adoptar as recomendações ou decisões previstas nos acordos abrangidos. Os painéis deverão consultar regularmente as partes em litígio e dar-lhes oportunidade de chegarem a uma solução mutuamente satisfatória.

Artigo 12.º

Procedimentos relativos ao painel

1 - Os painéis seguirão os procedimentos previstos no Apêndice 3, salvo se o próprio painel decidir em contrário após consulta das partes em litígio.

2 - O processo do painel deverá ser suficientemente flexível para assegurar a elaboração de relatórios de alta qualidade, sem que isso atrase indevidamente todo o processo.

3 - Após consulta das partes em litígio, os membros do painel estabelecerão, logo que possível e de preferência no prazo de uma semana a contar da data em que foram acordados os termos de referência e a composição do painel, o calendário para o processo do painel, tendo em conta o disposto no n.º 9 do artigo 4.º

4 - Ao definir o calendário do processo do painel, o painel deve prever tempo suficiente para as partes em litígio prepararem as suas observações.

5 - Os painéis devem estabelecer prazos precisos para a apresentação por escrito das observações pelas partes, os quais devem ser respeitados.

6 - Cada uma das partes em litígio depositará as suas observações escritas no Secretariado, para que as mesmas possam ser imediatamente transmitidas ao painel e à(s) outra(s) parte(s). A parte queixosa apresentará as suas primeiras observações antes da parte acusada, a menos que o painel decida, ao fixar o calendário referido no n.º 3 e após consulta das partes em litígio, que as partes deverão apresentar as suas primeiras observações simultaneamente. Nos casos em que fique decidido que o depósito das primeiras observações não será simultâneo, o painel fixará um prazo rígido para a recepção das observações da parte acusada. Quaisquer observações escritas posteriores serão apresentadas simultaneamente.

7 - Caso as partes em litígio não consigam chegar a uma solução mutuamente satisfatória, o painel apresentará as suas conclusões, sob a forma de um relatório escrito ao ORL. Nesse caso, o relatório do painel deverá apresentar as conclusões sobre as questões de facto, sobre as disposições aplicáveis e os fundamentos essenciais de quaisquer conclusões e recomendações que adopte. Caso se consiga dirimir o litígio entre as partes, o relatório do painel deverá limitar-se a uma breve descrição do caso e à solução que foi dada ao mesmo.

8 - De modo a tornar os procedimentos mais eficientes, o prazo durante o qual o painel deverá proceder à sua análise, desde a data em que a composição e os termos de referência do painel foram acordados até à data em que o relatório final foi apresentado às partes em litígio, não deverá, regra geral, exceder seis meses. Nos casos urgentes, incluindo os casos relativos a bens perecíveis, o painel deverá apresentar o seu relatório às partes em litígio no prazo de três meses.

9 - Quando o painel considere que não pode apresentar o seu relatório no prazo de seis meses, ou no prazo de três meses para os casos de urgência, deve informar por escrito o ORL das razões do atraso, juntamente com uma estimativa do prazo dentro do qual estará em condições de apresentar o seu relatório. Contudo, o período entre a criação do painel e a apresentação do relatório aos Membros nunca poderá ser superior a nove meses.

10 - No contexto das consultas relativas a uma medida adoptada por um país membro em desenvolvimento, as partes podem acordar uma prorrogação dos prazos previstos nos n.os 7 e 8 do artigo 4.º Caso, decorrido o prazo estipulado, as partes em consulta não conseguirem chegar a um acordo sobre a conclusão das mesmas, o Presidente do ORL decidirá, após consulta das partes, da prorrogação ou não do prazo em questão e, em caso afirmativo, pro quanto tempo. Além disso, ao analisar a queixa contra um país Membro em desenvolvimento, o painel deve conceder-lhe tempo suficiente para preparar e apresentar a sua argumentação. O disposto no n.º 1 do artigo 20.º e no n.º 4 do artigo 21.º não é prejudicado por qualquer medida adoptada nos termos do presente número.

11 - Nos casos em que uma ou mais partes sejam um país Membro em desenvolvimento, o relatório do painel deve indicar expressamente a forma através da qual foram tidas em conta as disposições relativas ao tratamento diferenciado e mais favorável para os países Membros em desenvolvimento previstas nos acordos abrangidos invocados por esses países em desenvolvimento durante os procedimentos de resolução de litígios.

12 - O painel pode suspender os seus trabalhos a qualquer momento a pedido da parte queixosa por um período não superior a 12 meses. Em caso de suspensão, os prazos previstos nos n.os 8 e 9 do presente artigo, no n.º 1 do artigo 20.º e no n.º 4 do artigo 21.º serão prorrogados pelo período de tempo durante o qual os trabalhos estiveram suspensos. Caso os trabalhos do painel tenham sido suspensos por mais de 12 meses, a autorização para o estabelecimento do painel caduca.

Artigo 13.º

Direito de recolher informações

1 - Cada painel terá o direito de recolher informações e conselhos técnicos de qualquer indivíduo ou organismo que considere adequado. Contudo, antes de um painel procurar essas informações ou conselhos na jurisdição de um Membro, deve informar de tal facto as autoridades desse mesmo país Membro. Esse Membro deve responder atempadamente e de forma completa a qualquer pedido, apresentado por um painel, de informações que o referido painel considere necessárias e adequadas. As informações confidenciais que forem transmitidas não serão reveladas sem uma autorização formal do indivíduo, organismo, ou autoridades do membro que transmite a informação.

2 - Os painéis podem procurar informações de qualquer fonte relevante e podem consultar peritos para obter o seu parecer sobre certos aspectos da questão. No que respeita a uma questão de facto relativa a matéria científica ou técnica levantada por uma das partes em litígio, o painel pode requerer um parecer escrito de um grupo de peritos. As regras relativas ao estabelecimento de tal grupo, bem como os seus procedimentos, constam do Apêndice 4.

Artigo 14.º

Confidencialidade

1 - As deliberações do painel são confidenciais.

2 - Os relatórios do painel serão elaborados sem a presença das partes em litígio, tendo como base as informações prestadas e as declarações feitas.

3 - Os pareceres expressos no relatório do painel pelos seus Membros serão anónimos.

Artigo 15.º

Fase intermédia de revisão

1 - Na sequência da análise das observações e das alegações orais das diversas partes, o painel apresentará as secções descritivas (de facto e de jure) do seu projecto de relatório às partes em litígio. As partes apresentarão as suas observações escritas sobre a matéria num prazo estipulado pelo painel.

2 - Decorrido o prazo estabelecido para a recepção das referidas observações, o painel apresentará um relatório provisório às partes, incluindo tanto as secções descritivas como as conclusões do painel. Dentro do prazo estabelecido pelo painel, qualquer parte pode solicitar por escrito ao painel a revisão de aspectos precisos do relatório provisório antes da apresentação do relatório final aos Membros. A pedido de uma das partes, o painel deve realizar mais uma reunião com as partes sobre as questões identificadas nas observações escritas. Se não tiverem sido recebidas observações das partes no prazo estipulado, o relatório provisório será considerado como final e apresentado em tempo devido aos Membros.

3 - As conclusões do relatório final do painel incluirão a discussão dos argumentos apresentados na fase intermédia de revisão. A fase intermédia de revisão realizar-se-á dentro do prazo estabelecido no n.º 8 do artigo 12.º

Artigo 16.º

Adopção dos relatórios do painel

1 - Para que os Membros disponham de tempo suficiente para analisar os relatórios do painel, estes não serão submetidos à aprovação do ORL antes de decorrido um prazo de 20 dias a contar da data em que os relatórios lhes foram transmitidos.

2 - Os Membros que tenham objecções a colocar ao relatório do painel deverão apresentar, por escrito, as razões dessas mesmas objecções pelo menos 10 dias antes da reunião do ORL na qual será analisado o relatório do painel.

3 - As partes em litígio têm o direito de participar inteiramente na análise pelo ORL do relatório do painel, devendo as suas opiniões ficar inteiramente registadas em acta.

4 - No prazo de 60 dias a contar da data de apresentação de um relatório do painel aos membros, o relatório será adoptado numa reunião do ORL (ver nota 7), a menos que uma das partes em litígio notifique formalmente o ORL da sua decisão de recorrer, ou que o ORL decida, por consenso, não adoptar o relatório. Caso uma das partes tenha notificado a sua decisão de recorrer, o relatório não será submetido à aprovação do ORL até à conclusão do processo de recurso. Este processo de adopção não prejudica o direito dos membros de apresentarem os seus pontos de vista num relatório do painel.

(nota 7) Se não estiver prevista nenhuma reunião do ORL dentro de um prazo que permita que os requisitos estabelecidos no n.º 1 do artigo 16.º sejam satisfeitos, será convocada uma reunião do ORL especialmente para esse efeito.

Artigo 17.º

Processo de recurso

Órgão de Recurso

1 - Será criado pelo ORL um Órgão de Recurso. O Órgão de Recurso apreciará os recursos interpostos das decisões do painel. Este órgão será composto por sete pessoas, três das quais participarão na análise de cada caso. Os membros do Órgão de Recurso exercerão funções de um modo rotativo, que será definido no regulamento interno do Órgão de Recurso.

2 - O ORL nomeará os membros do Órgão de Recurso por um período de quatro anos, podendo cada membro ser reconduzido no seu cargo uma vez. Contudo, o mandato de três das sete pessoas nomeadas imediatamente após a entrada em vigor do Acordo OMC terminará decorridos dois anos. A escolha dessas três pessoas será feita por sorteio. As vagas serão preenchidas à medida que forem surgindo. Uma pessoa nomeada para substituir outra cujo mandato ainda não tinha expirado manter-se-á em funções pelo período restante do mandato do seu predecessor.

3 - O Órgão de Recurso será composto por pessoas de reconhecida autoridade, especialistas em direito, comércio internacional e nas matérias reguladas nos acordos abrangidos em geral. Estas pessoas não deverão estar ligadas a qualquer governo. A composição do Órgão de Recurso deverá ser representativa dos membros da OMC. Todos os membros do Órgão de Recurso deverão estar disponíveis a qualquer momento e mediante um curto prazo de pré-aviso, não podendo ter desempenhado quaisquer actividades na área da resolução de litígios e outras actividades relevantes no âmbito da OMC. Estas pessoas não participarão na análise de qualquer litígio que possa criar um conflito de interesses directo ou indirecto.

4 - Apenas as partes em litígio, e não qualquer parte terceira, podem recorrer do relatório de um painel. As partes terceiras que tenham notificado o ORL de um interesse substancial na matéria, nos termos do n.º 2 do artigo 10.º, podem apresentar observações escritas e ser ouvidas pelo Órgão de Recurso.

5 - Regra geral, o processo não deve exceder 60 dias desde a data em que uma parte em litígio notifique formalmente a sua decisão de recorrer até à data em que o Órgão de Recurso apresenta o seu relatório. Ao estabelecer o seu calendário, o Órgão de Recurso deve ter em conta as disposições do n.º 9 do artigo 4.º, se aplicáveis. Caso o Órgão de Recurso considere que não pode apresentar o seu relatório no prazo de 60 dias, deve informar o ORL, por escrito, das razões do atraso, juntamente com uma estimativa do prazo dentro do qual pensa estar em condições de apresentar o seu relatório. Contudo, o processo nunca deve exceder um período de 90 dias.

6 - Um recurso deve ser limitado às questões de direito referidas no relatório do painel e às interpretações jurídicas aí desenvolvidas.

7 - O Órgão de recurso terá o apoio administrativo e jurídico que for adequado.

8 - As despesas dos membros do Órgão de Recurso, incluindo as despesas de viagem e as ajudas de custo, serão cobertas a partir do orçamento do OMC, em conformidade com os critérios a adoptar pelo Conselho Geral, com base nas recomendações do Comité de Orçamento, Finanças e Administração.

Processo de recurso

9 - Os trâmites processuais do recurso serão definidos pelo Órgão de Recurso em consulta com o Presidente do ORL e com o Director-Geral, e comunicados aos Membros para sua informação.

10 - O regulamento interno do Órgão de Recurso será confidencial. Os relatórios do Órgão de Recurso serão redigidos sem a presença das partes em litígio e à luz das informações transmitidas e das declarações prestadas.

11 - Os pareceres expressos no relatório do Órgão de Recurso pelos membros desse mesmo órgão são anónimos.

12 - O Órgão de Recurso analisará cada uma das questões colocadas em conformidade com o n.º 6 durante o processo de recurso.

13 - O Órgão de Recurso pode ratificar, alterar ou revogar as conclusões jurídicas do painel.

Adopção dos relatórios do Órgão de Recurso

14 - Os relatórios do Órgão de Recurso serão adoptados pelo ORL e aceites incondicionalmente pelas partes em litígio, salvo se o ORL decidir por consenso não adoptar o relatório do Órgão de Recurso no prazo de 30 dias a contar da sua apresentação aos Membros (ver nota 8). Este procedimento de adopção não prejudica o direito de os Membros exprimirem as suas opiniões num relatório do Órgão de Recurso.

(nota 8) Se não estiver prevista nenhuma reunião do ORL durante esse período, será convocada uma reunião do ORL especialmente para esse efeito.

Artigo 18.º

Comunicações com o painel ou o Órgão de Recurso

1 - Não haverá quaisquer comunicações ex parte com o painel ou o Órgão de Recurso que digam respeito a matérias que estejam a ser apreciadas por qualquer um destes órgãos.

2 - As observações escritas apresentadas ao painel ou ao Órgão de Recurso serão tratadas como confidenciais, ficando contudo ao dispor das partes em litígio. O disposto no presente Memorando não impede que uma parte em litígio divulgue as suas próprias posições. Os Membros devem tratar como confidenciais as informações transmitidas por outro Membro ao painel ou ao Órgão de Recurso, caso aquele lhes tenha atribuído carácter confidencial. Uma parte em litígio apresentará igualmente, a pedido de um Membro, um resumo não confidencial das informações contidas nas suas observações escritas que possam ser transmitidas ao público.

Artigo 19.º

Recomendações do painel e do Órgão de Recurso

1 - Caso um painel ou o Órgão de Recurso considerem uma medida incompatível com um acordo abrangido, recomendarão ao Membro em causa (ver nota 9) a conformação dessa medida com o Acordo (ver nota 10). Além dessas recomendações, o painel ou o Órgão de Recurso podem propor formas para a execução, pelo Membro em causa, dessas recomendações.

2 - Em conformidade com o n.º 2 do artigo 3.º, nas suas conclusões e recomendações, o painel e o Órgão de Recurso não podem aumentar ou diminuir os direitos e obrigações previstos nos acordos abrangidos.

(nota 9) O «Membro em causa» é a parte em litígio à qual são dirigidas as recomendações do painel ou do Órgão de Recurso.

(nota 10) No que se refere às recomendações sobre casos que não envolvem a violação do GATT de 1994 ou de outro acordo abrangido, ver artigo 26.º

Artigo 20.º

Prazo de adopção das decisões do ORL

Salvo acordo em contrário das partes em litígio, o período decorrente entre a data de criação do painel pelo ORL e a data em que o ORL analisa o relatório do painel ou do Órgão de Recurso para adopção não deve, em geral, exceder 9 meses, caso não se recorra do relatório do painel, ou 12 meses, caso se recorra desse mesmo relatório. Caso o painel ou o Órgão de Recurso tenham obtido, nos termos do n.º 9 do artigo 12.º ou do n.º 5 do artigo 17.º, uma prorrogação do prazo de apresentação do seu relatório, esse período adicional deve ser acrescido aos prazos referidos supra.

Artigo 21.º

Fiscalização da execução das recomendações e decisões

1 - O rápido cumprimento das recomendações ou decisões do ORL é essencial para assegurar uma resolução eficaz dos litígios em benefício de todos os Membros.

2 - Aquando da análise de medidas no âmbito de um processo de resolução de litígios, será dada especial atenção a questões que afectem os interesses de países Membros em desenvolvimento.

3 - Numa reunião do ORL a realizar no prazo de 30 dias (ver nota 11) a contar da data de adopção do relatório do painel ou do Órgão de Recurso, o Membro em causa informará o ORL das suas intenções no que se refere à execução das recomendações e decisões do ORL. Caso não seja possível dar imediatamente cumprimento às recomendações e decisões, o Membro em causa disporá de um prazo razoável para o fazer. Esse prazo razoável será o seguinte:

a) O prazo proposto pelo Membro em causa, desde que esse prazo seja aprovado pelo ORL; ou, na falta de tal aprovação,

b) Um prazo mutuamente acordado pelas partes em litígio, dentro de 45 dias a contar da data de adopção das recomendações e decisões; ou, na falta de tal acordo,

c) Um prazo determinado através de arbitragem vinculativa dentro de 90 dias a contar da data de adopção das recomendações e decisões (ver nota 12). Neste processo de arbitragem, uma norma a respeitar pelo árbitro (ver nota 13) é a de que o prazo razoável para execução das recomendações do painel ou do Órgão de Recurso não deve exceder 15 meses a contar da data de adopção de um relatório do painel ou do Órgão de Recurso. Contudo, esse prazo pode ser mais curto ou mais longo, consoante as circunstâncias específicas do caso.

4 - Salvo nos casos em que o painel ou o Órgão de Recurso tenham prorrogado, em conformidade com o n.º 9 do artigo 12.º ou o n.º 5 do artigo 17.º, o prazo de apresentação do seu relatório, o período decorrente entre a data de criação do painel pelo ORL e a data de definição de um prazo razoável não deve exceder 15 meses, a menos que as partes em litígio acordem em contrário. Caso o painel ou o Órgão de Recurso tenham obtido uma prorrogação do prazo de apresentação do seu relatório, esse período adicional para apresentação do mesmo deve ser acrescido ao período de 15 meses; a menos que as partes em litígio acordem que se está perante circunstâncias excepcionais, o prazo total não deve exceder os 18 meses.

5 - Caso haja desacordo quanto à existência ou compatibilidade com um acordo abrangido de medidas adoptadas para dar cumprimento às recomendações e decisões, esse diferendo será resolvido através destes processos de resolução de litígios, incluindo o recurso, sempre que possível, ao painel original. O painel deve apresentar o seu relatório no prazo de 90 dias a contar da data em que a questão lhe foi submetida para apreciação. Caso o painel considere que não pode apresentar o seu relatório dentro do prazo estipulado, informará o ORL, por escrito, das razões do atraso, juntamente com uma estimativa do prazo dentro do qual pensa estar em condições de apresentar o seu relatório.

6 - O OLR fiscalizará a execução das recomendações ou decisões adoptadas. A questão da execução das recomendações ou decisões pode ser levantada no ORL por qualquer Membro em qualquer momento após a sua adopção. Salvo decisão em contrário do ORL, a questão da execução das recomendações ou decisões fará parte da ordem de trabalhos da reunião do ORL a realizar num prazo de seis meses a contar da data de definição do prazo razoável nos termos do n.º 3 e manter-se-á na ordem de trabalhos do ORL até que a questão esteja resolvida. Pelo menos 10 dias antes de cada reunião do ORL, o Membro em causa apresentará ao ORL um relatório escrito sobre os progressos efectuados na execução das recomendações ou decisões.

7 - Se a questão tiver sido colocada por um país Membro em desenvolvimento, o ORL estudará as possibilidades de adoptar outras medidas que sejam adequadas às circunstâncias.

8 - Se a questão for apresentada por um país Membro em desenvolvimento, ao considerar as medidas adequadas que pode adoptar, o ORL terá em conta não só a incidência comercial das medidas denunciadas, mas também o seu impacte na economia do país em desenvolvimento em causa.

(nota 11) Se não estiver prevista nenhuma reunião do ORL durante esse período, será convocada uma reunião do ORL especialmente para esse efeito.

(nota 12) Caso as partes não consigam acordar na nomeação de um árbitro no prazo de 10 dias a contar da data em que decidiram recorrer à arbitragem, o árbitro será nomeado pelo Director-Geral no prazo de 10 dias, após consulta das partes.

(nota 13) A expressão «árbitro» deve ser interpretada como referindo-se tanto a um indivíduo como a um grupo.

Artigo 22.º

Compensação e suspensão das concessões

1 - A compensação e a suspensão de concessões e outras obrigações são medidas temporárias que se podem adoptar caso as recomendações e as decisões não sejam executadas dentro de um prazo razoável. Contudo, nem a compensação nem a suspensão de concessões ou outras obrigações são preferíveis à execução completa de uma recomendação como forma de tornar uma medida conforme aos acordos abrangidos. A compensação é voluntária e, se aprovada, deve ser compatível com os acordos abrangidos.

2 - Se o Membro em causa não tornar a medida que foi considerada incompatível com o acordo abrangido conforme ao mesmo, ou se, de qualquer outro modo, não cumprir as recomendações e as decisões dentro de um prazo razoável previsão no n.º 3 do artigo 21.º, esse Membro deverá, se tal lhe for requerido e nunca após o termo do prazo razoável fixado, entabular negociações com qualquer parte que tenha accionado os processos de resolução de litígios, com vista a chegarem a acordo sobre uma compensação mutuamente satisfatória. Se não for acordada nenhuma compensação satisfatória no prazo de 20 dias a contar da data em que expira o prazo razoável, qualquer parte que tenha accionado o processo de resolução de litígios pode solicitar autorização do ORL para suspender a aplicação, em relação ao Membro em causa, das concessões ou outras obrigações previstas nos acordos abrangidos.

3 - Ao considerar quais as concessões ou outras obrigações a suspender, a parte queixosa aplicará os seguintes princípios e procedimentos:

a) O princípio geral é o de que a parte queixosa deve primeiro procurar suspender as concessões ou outras obrigações no(s) mesmo(s) sector(es) onde o painel ou o Órgão de Recurso constataram uma violação, anulação ou redução de vantagens;

b) Caso essa parte considere que não é viável ou eficaz suspender concessões ou outras obrigações nos mesmos sectores, pode procurar suspender concessões ou outras obrigações em outros sectores abrangidos pelo mesmo acordo;

c) Caso essa parte considere que não é viável ou eficaz suspender concessões ou outras obrigações em outros sectores abrangidos pelo mesmo acordo, e que as circunstâncias são suficientemente graves, pode procurar suspender concessões ou outras obrigações previstas noutros acordos abrangidos;

d) Ao aplicar os princípios referidos supra, essa parte terá em conta:

i) O comércio no sector ou no âmbito do acordo com base no qual o painel ou o Órgão de Recurso constatou uma violação, anulação ou redução de vantagens, e a importância, para si, desse comércio;

ii) Os elementos económicos mais vastos relacionados com a anulação ou a redução de vantagens e as consequências económicas mais amplas da suspensão de concessões ou outras obrigações;

e) Se essa parte decidir solicitar autorização para suspender concessões ou outras obrigações nos termos das alíneas b) ou c), deve indicar as razões do seu pedido. Este pedido deve ser simultaneamente apresentado ao ORL, aos conselhos relevantes e igualmente, no caso de um pedido nos termos da alínea d), os órgãos sectoriais relevantes;

f) Para efeitos do presente número, por «sector» entende-se:

i) No que se refere às mercadorias, todas as mercadorias;

ii) No que se refere aos serviços, um sector principal, tal como identificado na actual «Lista de Classificação Sectorial de Serviços» que identifica tais sectores (ver nota 14);

iii) No que se refere aos direitos de propriedade intelectual relacionados com o comércio, cada uma das categorias de direitos de propriedade intelectual previstas nas secções 1, 2, 3, 4, 5, 6 ou 7 da parte II, ou as obrigações previstas nas partes III ou IV do Acordo sobre os TRIPS;

g) Para efeitos do presente número, por «acordo» entende-se:

i) No que se refere às mercadorias, os acordos enumerados no Anexo 1A do Acordo OMC, bem como os acordos comerciais plurilaterais, desde que as partes em litígio sejam igualmente partes nesses acordos;

ii) No que se refere aos serviços, o GATS;

iii) No que se refere aos direitos de propriedade intelectual, o Acordo sobre os TRIPS.

4 - O nível de suspensão de concessões ou outras obrigações autorizadas pelo ORL deve ser equivalente ao nível da anulação ou redução de vantagens.

5 - O ORL não autorizará a suspensão de concessões ou outras obrigações se um acordo abrangido proibir essa mesma suspensão.

6 - Caso se verifique a situação descrita no n.º 2, o ORL, mediante pedido, concederá autorização para suspender concessões ou outras obrigações no prazo de 30 dias a contar do termo do prazo razoável, salvo se o ORL decidir, por consenso, rejeitar o pedido. Contudo, se o Membro em causa colocar objecções ao nível de suspensão proposta, ou alegar que os princípios e procedimentos previstos no n.º 3 não foram respeitados quando uma parte queixosa solicitou autorização para suspender concessões ou outras obrigações nos termos das alíneas b) ou c) do n.º 3, a questão deverá ser resolvida por arbitragem. Este processo de arbitragem será conduzido pelo painel inicial, se os seus membros estiverem disponíveis, ou por um árbitro (ver nota 15) nomeado pelo Director-Geral, e deverá estar concluído no prazo de 60 dias a contar da data em que termina o prazo razoável. As concessões ou outras obrigações não serão suspensas no decurso do processo de arbitragem.

7 - O árbitro (ver nota 16), agindo de acordo com o previsto no n.º 6, não analisará o carácter das concessões ou outras obrigações a suspender mas verificará se o nível de tal suspensão é equivalente ao nível da anulação ou redução de vantagens. O árbitro pode igualmente determinar se a suspensão de concessões ou outras obrigações proposta é permitida pelo acordo abrangido. Contudo, se a questão submetida à apreciação do árbitro incluir uma alegação de que os princípios e procedimentos previstos no n.º 3 não foram respeitados, o árbitro deve examinar essa mesma alegação. Caso o árbitro verifique que esses princípios e procedimentos não foram respeitados, a parte queixosa deve aplicá-los nos termos previstos no referido n.º 3. As partes aceitarão a decisão do árbitro como final e as partes em causa não procurarão uma segunda arbitragem. O ORL será informado atempadamente da decisão do árbitro e concederá, mediante pedido, autorização para suspender as concessões ou outras obrigações nos casos em que esse pedido seja compatível com a decisão do árbitro, salvo se o ORL decidir por consenso rejeitar o pedido.

8 - A suspensão de concessões ou outras obrigações será temporária e só se manterá enquanto a medida que foi considerada incompatível com o acordo abrangido não for revogada, ou o Membro que deve dar cumprimento às recomendações ou decisões não apresentar uma solução para a anulação ou redução de vantagens, ou enquanto não for encontrada uma solução mutuamente satisfatória. Em conformidade com o disposto no n.º 6 do artigo 21.º, o ORL continua a fiscalizar a aplicação das recomendações ou decisões adoptadas, incluindo os casos em que foi concedida uma compensação ou em que foram suspensas concessões ou outras obrigações mas em que as recomendações para tornar uma medida conforme aos acordos abrangidos não foram executadas.

9 - As disposições relativas à resolução de litígios dos acordos abrangidos podem ser invocadas no que se refere às medidas que afectem o seu cumprimento adoptadas pelos governos ou autoridades regionais ou locais no território de um Membro. Caso o ORL decida que uma disposição de um acordo abrangido não foi respeitada, o Membro responsável deve tomar as medidas adequadas para assegurar o seu cumprimento. As disposições dos acordos abrangidos e do presente Memorando relativas à compensação ou à suspensão de concessões ou outras obrigações são aplicáveis nos casos em que não foi possível assegurar o seu cumprimento (ver nota 17).

(nota 14) A lista que consta do documento MTN.GNS/W/120 identifica 11 sectores.

(nota 15) A expressão «árbitro» deve ser interpretada como referindo-se tanto a um indivíduo como a um grupo.

(nota 16) A expressão «árbitro» deve ser interpretada como referindo-se tanto a um indivíduo ou grupo como aos membros do painel inicial, quando ajam na condição de árbitros.

(nota 17) Caso as disposições de qualquer acordo abrangido relativas a medidas adoptadas pelas autoridades ou governos regionais ou locais no território de um Membro disponham de forma diferente do estatuído no presente número, são aplicáveis as disposições de tais acordos abrangidos.

Artigo 23.º

Reforço do sistema multilateral

1 - Sempre que os Membros queiram opor-se à violação de obrigações ou à anulação ou redução de vantagens previstas nos acordos abrangidos, ou a um impedimento para atingir qualquer objectivo previsto nos referidos acordos, deverão recorrer e respeitar as normas e procedimentos previstos no presente Memorando.

2 - Nesses casos, os Membros deverão:

a) Abster-se de adoptar qualquer decisão tendo em conta o facto de ter ocorrido uma violação, de terem sido anuladas ou reduzidas as vantagens ou de ter sido impedida a realização de qualquer objectivo previsto nos acordos abrangidos, excepto através do recurso ao mecanismo de resolução de litígios, em conformidade com as normas e procedimentos previstos no presente Memorando, devendo tal decisão ser compatível com as conclusões apresentadas no relatório do painel ou do Órgão de Recurso adoptado pelo ORL ou com qualquer decisão, no âmbito de um processo de arbitragem tomada ao abrigo do presente Memorando;

b) Respeitar o procedimento previsto no artigo 21.º para determinar o prazo razoável para o Membro em causa executar as recomendações e decisões; e

c) Respeitar os procedimentos previstos no artigo 22.º para definir o nível de suspensão de concessões ou outras obrigações e obter autorização do ORL, em conformidade com esses procedimentos, antes de suspender concessões ou outras obrigações previstas nos acordos abrangidos como retaliação pelo não cumprimento, pelo Membro em causa, das recomendações e decisões dentro daquele prazo razoável.

Artigo 24.º

Procedimentos especiais relativos aos países Membros menos desenvolvidos

1 - Em todas as fases da definição das causas de um litígio e do processo de resolução de litígios que envolvam um país Membro menos desenvolvido, deve ser dada especial atenção à situação especial dos países Membros menos desenvolvidos. Neste contexto, os Membros devem mostrar uma certa contenção em matéria de apresentação de queixas e pedidos no âmbito dos presentes procedimentos quando esteja envolvido um país Membro menos desenvolvido. Caso se verifique uma anulação ou redução de vantagens em resultado de uma medida adoptada por um país Membro menos desenvolvido, as partes queixosas devem mostrar uma certa contenção ao solicitarem compensação ou autorização para suspender a aplicação de concessões ou outras obrigações nos termos destes procedimentos.

2 - Nos casos de resolução de litígios que envolvam um país Membro menos desenvolvido, quando não se encontrar uma solução satisfatória no âmbito do processo de consultas, o Director-Geral ou o Presidente do ORL deverão, a pedido de um país Membro menos desenvolvido, oferecer os seus bons ofícios, conciliação e mediação com vista a assistir as partes na resolução do litígio, antes de se solicitar a criação de um painel. O Director-Geral ou o Presidente do ORL, ao prestar a assistência referida supra, pode consultar qualquer fonte que considere adequada.

Artigo 25.º

Arbitragem

1 - Um processo sumário de arbitragem no âmbito da OMC, como forma alternativa de resolução de litígios, pode facilitar a solução de certos litígios sobre questões claramente definidas por ambas as partes.

2 - Salvo disposição em contrário no presente Memorando, o recurso à arbitragem depende do acordo mútuo das partes, as quais devem acordar nos procedimentos a seguir. O acordo no sentido de se recorrer à arbitragem deve ser notificado a todos os Membros com um prazo suficiente antes do início do processo de arbitragem.

3 - Os outros Membros podem tornar-se parte num processo de arbitragem apenas com o acordo das partes que decidiram recorrer a este processo. As partes no processo de arbitragem devem comprometer-se a respeitar a decisão do árbitro. As decisões do árbitro serão notificadas ao ORL e ao Conselho ou Comité de qualquer acordo relevante, onde qualquer membro pode levantar uma questão relacionada com tal decisão.

4 - Os artigos 21.º e 22.º do presente Memorando são aplicáveis mutatis mutandis às decisões de arbitragem.

Artigo 26.º

1 - Queixas relativas a medidas que não constituem violação dos acordos, do tipo descrito no n.º 1, alínea b), do artigo XXIII do GATT de 1994.

Nos casos em que as disposições do n.º 1, alínea b), do artigo XXIII do GATT de 1994 são aplicáveis a um acordo abrangido, um painel ou o Órgão de Recurso só pode adoptar decisões e recomendações quando uma parte em litígio considere que qualquer benefício que lhe é devido directa ou indirectamente ao abrigo do acordo abrangido relevante está a ser anulado ou prejudicado, ou a realização de qualquer objectivo previsto nesse acordo está a ser impedida, pela aplicação por um Membro de qualquer medida, quer a mesma viole ou não as disposições desse acordo. Caso essa parte considere que a questão se refere a uma medida que não viola as disposições de um acordo abrangido ao qual são aplicáveis as disposições do n.º 1, alínea b), do artigo XXIII do GATT de 1994, e um painel ou o Órgão de Recurso decidam igualmente nesse sentido, são aplicáveis os procedimentos previstos no presente Memorando, com as seguintes alterações:

a) A parte queixosa deve apresentar uma justificação detalhada da sua queixa relacionada com uma medida que não viola o acordo abrangido relevante;

b) Caso se verifique que uma medida anula ou reduz as vantagens, ou impede a realização de objectivos, previstos no acordo abrangido relevante sem violação do mesmo, não existe qualquer obrigação de abolir essa medida. Contudo, nesses casos, o painel ou o Órgão de Recurso recomendarão ao Membro em causa que proceda a um ajustamento mutuamente satisfatório;

c) Sem prejuízo do disposto no artigo 21.º, a arbitragem prevista no n.º 3 do artigo 21.º, a pedido de qualquer uma das partes, pode incluir uma definição do nível de benefícios que foram anulados ou prejudicados, e pode igualmente propor formas e meios para se conseguir uma solução mutuamente satisfatória; essas propostas não serão vinculativas para as partes em litígio;

d) Sem prejuízo do disposto no n.º 1 do artigo 22.º, uma compensação pode fazer parte de um ajustamento mutuamente satisfatória para a resolução do litígio.

2 - Queixas do tipo descrito no n.º 1, alínea c), do artigo XXIII do GATT de 1994

Caso as disposições do n.º 1, alínea c), do artigo XXIII do GATT de 1994 sejam aplicáveis a um acordo abrangido, um painel só pode adoptar decisões e recomendações caso uma parte considere que qualquer vantagem que lhe é concedida, directa ou indirectamente, ao abrigo do acordo abrangido relevante está a ser anulada ou prejudicada, ou a realização de qualquer objectivo previsto nesse acordo está a ser impedida, pela existência de uma situação à qual não são aplicáveis as disposições do n.º 1, alíneas a) e b), do artigo XXIII do GATT de 1994. Caso essa parte considere que a questão é abrangida pelo presente número, e o painel decida igualmente nesse sentido, são aplicáveis as disposições do presente Memorando apenas até à fase processual em que o relatório do painel é apresentado aos Membros. São aplicáveis as normas e procedimentos de resolução de litígios previstas na Decisão de 12 de Abril de 1989 (BISD 36S/61-67), no que respeita à consideração para adopção, fiscalização e execução das recomendações e decisões. É igualmente aplicável o seguinte:

a) A parte queixosa deve apresentar uma justificação detalhada em apoio de qualquer argumento que tenha sido apresentado relativo às questões abrangidas pelo presente número;

b) Nos casos que envolvam questões abrangidas pelo presente número, se um painel verificar que estão igualmente envolvidas questões de resolução de litígios que não estão previstas no presente número, apresentará um relatório ao ORL onde analisa tais questões e um relatório separado sobre questões abrangidas pelo presente número.

Artigo 27.º

Atribuições do Secretariado

1 - O Secretariado assistirá os painéis, especialmente nos aspectos jurídicos, históricos e processuais das questões litigiosas e prestará apoio técnico e de secretariado.

2 - Não obstante o Secretariado assistir os Membros em matéria de resolução de litígios a seu pedido, pode ser igualmente necessário que o mesmo preste assistência jurídica complementar em matéria de resolução de litígios aos países Membros em desenvolvimento. Para este efeito, o Secretariado deve colocar ao dispor de qualquer país Membro em desenvolvimento que assim o requeira um perito em questões jurídicas dos serviços de cooperação técnica da OMC. Este perito assistirá o país Membro em desenvolvimento de uma forma que assegure a permanente imparcialidade do Secretariado.

3 - O Secretariado organizará cursos de formação especiais para os Membros interessados em matéria de procedimentos e práticas de resolução de litígios, a fim de permitir que os peritos dos Membros estejam melhor informados a este respeito.

APÊNDICE 1

ACORDOS ABRANGIDOS PELO PRESENTE MEMORANDO

A) Acordo que institui a Organização Mundial do Comércio.

B) Acordos comerciais multilaterais:

Anexo 1A: Acordos Multilaterais sobre o Comércio de Mercadorias;

Anexo 1B: Acordo Geral sobre o Comércio de Serviços;

Anexo 1C: Acordo sobre os Aspectos do Direito de Propriedade Intelectual Relacionados com o Comércio;

Anexo 2: Memorando de Entendimento sobre as Regras e Processos Que Regem a Resolução de Litígios.

C) Acordos comerciais plurilaterais:

Anexo 4:

Acordo sobre o Comércio de Aeronaves Civis;

Acordo sobre Contratos Públicos;

Acordo Internacional sobre o Leite e os Produtos Lácteos;

Acordo Internacional sobre a Carne de Bovino.

A aplicabilidade do presente Memorando aos acordos comerciais plurilaterais fica sujeita à adopção de uma decisão pelas partes em cada um dos acordos definindo os termos da aplicação do Memorando ao acordo individual, incluindo quaisquer normas ou procedimentos especiais ou complementares a incluir no Apêndice 2, tal como notificado ao ORL.

APÊNDICE 2

REGRAS E PROCEDIMENTOS ESPECIAIS OU COMPLEMENTARES PREVISTOS NOS ACORDOS ABRANGIDOS

(ver documento original)

A lista das normas e procedimentos previstos no presente Apêndice inclui disposições em que apenas uma parte das mesmas é relevante neste contexto.

Quaisquer normas ou procedimentos especiais ou complementares previstos nos acordos comerciais plurilaterais tal como definidos pelos órgãos competentes de cada acordo e tal como notificados ao ORL.

APÊNDICE 3

REGULAMENTO INTERNO

1 - Nos seus procedimentos o painel respeitará as disposições relevantes do presente Memorando. Além disso, é aplicável o seguinte regulamento interno.

2 - O painel reunir-se-á em sessão fechada. As partes em litígio, bem como outras partes interessadas, participarão nas reuniões apenas quando forem convidadas pelo painel para estarem presentes.

3 - As deliberações do painel e os documentos que lhe são apresentados terão tratamento confidencial. Nada no presente Memorando impede uma parte em litígio de divulgar as suas próprias posições ao público. Os Membros tratarão como confidencial qualquer informação transmitida por outro Membro ao painel que tenha sido identificada por aquele como confidencial. Nos casos em que uma parte em litígio apresenta uma versão confidencial das suas observações escritas ao painel, deve igualmente, a pedido de um Membro, transmitir uma síntese não confidencial das informações contidas nas suas observações que possa ser divulgada ao público.

4 - Antes da primeira reunião do painel com as partes, as partes em litígio transmitirão ao painel observações escritas nas quais apresentam os factos e os seus argumentos.

5 - Na sua primeira reunião com as partes, o painel pedirá à parte que apresentou a queixa que esta exponha as suas razões. Subsequentemente, e ainda na mesma reunião, a parte contra a qual é apresentada a queixa deverá apresentar o seu ponto de vista.

6 - Todas as partes terceiras que tenham notificado o seu interesse no litígio ao ORL serão convidadas por escrito a apresentarem as suas observações durante uma sessão da primeira reunião do painel, que será convocada para esse efeito. As partes terceiras podem estar presentes durante toda essa sessão.

7 - As contestações e réplicas formais deverão ser apresentadas numa segunda reunião de discussão do painel. A parte contra a qual é apresentada a queixa terá o direito de apresentar oralmente as suas alegações em primeiro lugar, seguindo-se-lhe a parte queixosa. As partes apresentarão, por escrito, antes dessa reunião, as respectivas contestações e réplicas ao painel.

8 - O painel pode, a qualquer momento, colocar questões às partes e solicitar-lhes explicações tanto durante a reunião com as partes como por escrito.

9 - As partes em litígio e qualquer parte terceira convidada para apresentar as suas observações nos termos do artigo 10.º devem transmitir ao painel uma versão escrita das suas declarações orais.

10 - Com vista a uma completa transparência, os pedidos, as contestações ou réplicas e as declarações referidas nos n.os 5 a 9 serão apresentadas na presença das partes. Além disso, as observações escritas de cada parte, incluindo quaisquer comentários sobre a parte descritiva do relatório e respostas a questões colocadas pelo painel, serão colocadas ao dispor das outras partes.

11 - Quaisquer procedimentos complementares específicos ao painel.

12 - Calendário proposto para os trabalhos do painel:

a) Recepção das primeiras observações escritas das partes:

1) Parte queixosa: 3-6 semanas;

2) Parte contra a qual é apresentada a queixa: 2-3 semanas;

b) Data, prazo e local da primeira reunião de discussão com as partes; reunião com uma parte terceira: 1-2 semanas;

c) Recepção das contestações e réplicas escritas das partes: 2-3 semanas;

d) Data, prazo e local da segunda reunião de discussão com as partes: 1-2 semanas;

e) Apresentação da parte descritiva do relatório às partes: 2-4 semanas;

f) Recepção das observações das partes sobre a parte descritiva do relatório: 2 semanas;

g) Apresentação do relatório provisório, incluindo as conclusões, às partes: 2-4 semanas;

h) Prazo para a parte solicitar a revisão de uma parte do relatório: 1 semana;

i) Período de revisão pelo painel, incluindo possíveis reuniões adicionais com as partes: 2 semanas:

j) Apresentação do relatório final às partes em litígio: 2 semanas;

k) Apresentação do relatório final aos Membros: 3 semanas.

O calendário apresentado supra pode ser alterado devido a quaisquer imprevistos. Se necessário, realizar-se-ão reuniões adicionais com as partes.

APÊNDICE 4

GRUPOS DE PERITOS

São aplicáveis as seguintes regras e procedimentos aos grupos de peritos criados em conformidade com o disposto no n.º 2 do artigo 13.º

1 - Os grupos de peritos ficam sob a autoridade do painel. As suas atribuições e regulamento interno serão definidos pelo painel, respondendo o grupo perante aquele.

2 - A participação nos grupos de peritos ficará restrita às pessoas com qualificações profissionais e experiência reconhecidas no domínio em questão.

3 - Os cidadãos das partes em litígio não podem integrar um grupo de peritos sem o acordo conjunto das partes em litígio, excepto em circunstâncias excepcionais, caso o painel considere que é a única forma de obter um parecer científico especializado. Os funcionários governamentais das partes em litígio não poderão integrar um grupo de peritos. Os membros dos grupos de peritos agem em nome individual e não como representantes governamentais ou representantes de qualquer organização. Os governos ou organizações não podem, pois, dar-lhes quaisquer instruções respeitantes às questões em análise num desses grupos.

4 - Os grupos de peritos podem consultar e procurar informações e pareceres técnicos de qualquer fonte que considerem adequada. Antes de um grupo de peritos procurar obter essas informações ou pareceres de uma fonte situada na jurisdição de um Membro, deve informar de tal facto o governo desse Membro. Qualquer Membro deve responder imediatamente e de uma forma completa a qualquer pedido, de um grupo de peritos, de informações que aquele considere necessárias e adequadas.

5 - As partes em litígio têm acesso a todas as informações relevantes prestadas a um grupo de peritos, excepto se tiverem carácter confidencial. As informações confidenciais prestadas ao grupo de peritos não serão divulgadas sem a autorização formal do governo, organização ou pessoa que as transmitiu. Quando tais informações são solicitadas ao grupo de peritos mas a sua transmissão pelo referido grupo não é autorizada, o governo, organização ou pessoa que transmitiu tais informações deve apresentar uma síntese não confidencial das mesmas.

6 - O grupo de peritos deve apresentar um relatório provisório às partes em litígio, para que estas apresentem as suas observações, e tendo essas mesmas observações em conta, redigirá o seu relatório final, que será apresentado às partes em litígio no momento em que for apresentado ao painel. O relatório final do grupo de peritos não é vinculativo.

ANEXO 3

MECANISMO DE EXAME DAS POLÍTICAS COMERCIAIS

Os Membros acordam no seguinte:

A - Objectivos

i) O Mecanismo de Exame das Políticas Comerciais (MEPC) tem por objectivo contribuir para uma melhor adesão de todos os Membros às regras, disciplinas e compromissos assumidos no âmbito dos acordos comerciais multilaterais e, se for caso disso, dos acordos comerciais plurilaterais, e, por conseguinte, para facilitar o funcionamento do sistema comercial multilateral, através de uma maior transparência e de um melhor conhecimento das políticas e práticas comerciais dos Membros. Por conseguinte, o mecanismo de exame permite apreciar e avaliar colectivamente, de um modo regular, toda a gama de políticas e práticas comerciais dos diferentes Membros, bem como o seu impacte no funcionamento do sistema comercial multilateral. No entanto, este mecanismo não se destina a servir de base para garantir o cumprimento de obrigações específicas decorrentes dos acordos nem para os processos de resolução de litígios, nem ainda para impor aos Membros novos compromissos em matéria de política.

ii) A avaliação efectuada no âmbito do mecanismo de exame inscreve-se, na medida do pertinente, no contexto das necessidades, políticas e objectivos mais vastos do Membro em questão no domínio da economia e do desenvolvimento, bem como no seu contexto externo. No entanto, o mecanismo de exame tem por função examinar o impacte das políticas e práticas comerciais de um Membro no sistema comercial multilateral.

B - Transparência interna

Os Membros reconhecem o valor intrínseco, para as economias dos Membros e para o sistema comercial multilateral, da transparência interna a nível do processo de tomada de decisão pelos governos em matéria de política comercial e acordam em incentivar e promover uma maior transparência no âmbito dos seus próprios sistemas, reconhecendo que a aplicação da transparência interna deve efectuar-se de forma voluntária e tomar em consideração os sistemas político e jurídico de cada Membro.

C - Procedimento de exame

i) É criado o Órgão de Exame das Políticas Comerciais (a seguir designado «OEPC»), ao qual incumbirão os exames das políticas comerciais.

ii) As políticas e práticas comerciais de todos os Membros serão objecto de um exame periódico. O impacte dos diferentes Membros no funcionamento do sistema comercial multilateral, definido em termos da respectiva parte do comércio mundial no período representativo recente, constituirá o factor determinante para decidir da frequência dos exames. As primeiras quatro entidades comerciais assim identificadas (representando as Comunidades Europeias uma única entidade) serão objecto de um exame de dois em dois anos. As 16 entidades seguintes serão objecto de um exame de quatro em quatro anos. Os outros Membros serão objecto de um exame de seis em seis anos, excepto no caso dos países menos desenvolvidos Membros relativamente aos quais poderá ser fixado um período mais longo. Entende-se que o exame de entidades que tenham uma política externa comum que abranja mais do que um Membro deverá respeitar a todas as componentes da política que afectem o comércio, incluindo as políticas e práticas pertinentes de cada Membro considerado. Em casos excepcionais, na eventualidade de mudanças nas políticas ou práticas comerciais de um Membro que possam ter um impacte significativo nos seus parceiros comerciais, o OEPC poderá, após consultas, solicitar ao Membro em questão uma antecipação do seu próximo exame.

iii) Nas reuniões do OEPC, os debates serão conduzidos em função dos objectivos enunciados no ponto A. Esses debates centrar-se-ão nas políticas e práticas comerciais dos Membros que são objecto da avaliação no âmbito do mecanismo de exame.

iv) O OEPC estabelecerá um plano de base para a realização dos exames. Poderá, de igual modo, examinar e ter em conta os relatórios actualizados dos Membros. O OEPC estabelecerá, para cada ano, um programa de exames, em consulta com os Membros directamente em questão. Em consulta com o Membro ou Membros cuja política será objecto de exame, o presidente poderá designar apresentadores que, sob a sua própria responsabilidade, introduzirão os debates a nível do OEPC.

v) O OEPC baseará os seus trabalhos nos seguintes documentos:

a) Um relatório completo, referido no ponto D, a apresentar pelo Membro ou Membros objecto de exame;

b) Um relatório, a elaborar pelo Secretariado, sob a sua própria responsabilidade, com base nas informações de que disponha e nas que lhe sejam fornecidas pelo Membro ou Membros em questão. O Secretariado procurará esclarecer com o Membro ou Membros em questão as respectivas políticas e práticas comerciais.

vi) Os relatórios do Membro objecto de exame e do Secretariado, bem como a acta da respectiva reunião do OEPC, serão publicados no mais curto prazo de tempo após o exame.

vii) Estes documentos serão comunicados à Conferência Ministerial, que os terá em conta.

D - Apresentação de relatórios

A fim de conseguir o grau mais elevado possível de transparência, cada Membro apresentará periodicamente relatórios ao OEPC. Os relatórios completos conterão uma descrição das políticas e práticas comerciais do Membro ou Membros em questão, segundo um modelo acordado, a decidir pelo OEPC. Este modelo basear-se-á inicialmente no esquema de modelo para os relatórios dos países estabelecido pela Decisão de 19 de Julho de 1989 (BISD 36S/406-409), alterado na medida do necessário para alargar o âmbito dos relatórios a todos os aspectos das políticas comerciais abrangidas pelos acordos comerciais multilaterais que figuram no Anexo 1 e, se for caso disso, pelos acordos comerciais plurilaterais. Este modelo poderá ser revisto pelo OEPC à luz da experiência. No intervalo entre dois exames, os Membros apresentarão um relatório sucinto sempre que ocorram alterações significativas nas respectivas políticas comerciais. Fornecerão igualmente actualizações anuais das informações estatísticas de acordo com o modelo acordado. Será conferida especial atenção às dificuldades enfrentadas pelos países menos desenvolvidos Membros no que respeita à elaboração dos respectivos relatórios. O Secretariado disponibilizará, mediante pedido, assistência técnica aos países em desenvolvimento Membros e, em especial, aos países menos desenvolvidos Membros. As informações contidas nos relatórios deverão, na medida do possível, ser coordenadas com as notificações a apresentar em conformidade com as disposições dos acordos comerciais multilaterais e, se for caso disso, dos acordos comerciais plurilaterais.

E - Relação com as disposições em matéria de balança de pagamentos do GATT de 1994 e do GATS

Os Membros reconhecem a necessidade de reduzir ao mínimo o encargo dos Estados que sejam igualmente objecto de consultas aprofundadas por força das disposições em matéria de balança de pagamentos do GATT de 1994 ou do GATS. Para o efeito, o presidente do OEPC, em consulta com o Membro ou Membros em questão e com o presidente do Comité das Restrições Relacionadas com a Balança de Pagamentos, elaborará disposições administrativas que harmonizem o ritmo normal dos exames das políticas comerciais com o calendário das consultas sobre a balança de pagamentos, mas que não adiem, por mais de 12 meses, o exame das políticas comerciais.

F - Avaliação do mecanismo

O OEPC procederá a uma avaliação do funcionamento do MEPC, o mais tardar, cinco anos após a entrada em vigor do Acordo que cria a OMC. Os resultados da avaliação serão apresentados à Conferência Ministerial. Posteriormente, o OEPC poderá realizar avaliações com a periodicidade que ele próprio fixar ou tal como solicitado pela Conferência Ministerial.

G - Análise global da evolução do contexto comercial internacional

O OEPC efectuará igualmente uma análise globalanual da evolução do contexto comercial internacional que tenha um impacte no sistema comercial multilateral. Para o efeito, basear-se-á num relatório anual do Director-Geral no qual serão expostas as principais actividades da OMC e realçadas as questões importantes de política que afectem o sistema comercial.

ANEXO 4

ACORDOS COMERCIAIS PLURILATERAIS

ACORDO SOBRE O COMÉRCIO DE AERONAVES CIVIS

O Acordo sobre o Comércio de Aeronaves Civis, feito em Genebra em 12 de Abril de 1979 (BISD 26S/162), tal como posteriormente alterado ou rectificado.

ACORDO SOBRE CONTRATOS PÚBLICOS

O Acordo sobre Contratos Públicos feito em Marráquexe em 15 de Abril de 1994.

ACORDO INTERNACIONAL SOBRE O LEITE E OS PRODUTOS LÁCTEOS

O Acordo Internacional sobre o Leite e os Produtos Lácteos feito em Marráquexe em 15 de Abril de 1994.

ACORDO INTERNACIONAL SOBRE A CARNE DE BOVINO

O Acordo Internacional sobre a Carne de Bovino feito em Marráquexe em 15 de Abril de 1994.

DECISÕES E DECLARAÇÕES MINISTERIAIS

Decisão relativa às medidas em favor dos países menos desenvolvidos

Os Ministros:

Reconhecendo a gravidade da situação dos países menos desenvolvidos, bem como a necessidade de assegurar a sua participação efectiva no sistema comercial mundial e de tomar novas medidas destinadas a melhorar as suas oportunidades comerciais;

Reconhecendo as necessidades específicas dos países menos desenvolvidos no que se refere ao acesso ao mercado, domínio em que a continuação de um acesso preferencial permanece um instrumento essencial para melhoria das suas oportunidades comerciais;

Reiterando o seu empenhamento em aplicar na íntegra as disposições relativas aos países menos desenvolvidos constantes no n.os 2, alínea d), 6 e 8 da Decisão de 28 de Novembro de 1979, relativa ao tratamento diferenciado e mais favorável, à reciprocidade e à participação mais activa dos países em desenvolvimento;

Tendo em conta o compromisso assumido pelos participantes na secção B, VII), da parte I da Declaração Ministerial de Punta del Este:

1 - Decidem que, caso tal não esteja já previsto nos instrumentos negociados no decurso do Uruguay Round e não obstante a sua aceitação destes instrumentos, os países menos desenvolvidos, enquanto se mantiverem nesta categoria e na condição de observarem as regras gerais enunciadas nos referidos instrumentos, apenas serão obrigados a assumir compromissos e a fazer concessões na medida em que estes sejam compatíveis com as suas necessidades financeiras, comerciais e de desenvolvimento cada, bem como com as suas capacidades administrativas e institucionais. Os países menos desenvolvidos beneficiarão de um prazo suplementar de um ano a contar de 15 de Abril de 1994 para apresentarem as suas listas tal como previsto no artigo 11.º do Acordo Que Cria a Organização Mundial do Comércio.

2 - Acordam que:

i) A rápida execução de todas as medidas especiais e diferenciadas tomadas em favor dos países menos desenvolvidos, incluindo as que foram adoptadas no âmbito do Uruguay Round, será assegurada, nomeadamente, através de exames periódicos;

ii) As concessões NMF relativas às medidas pautais e não pautais acordadas no âmbito do Uruguay Round para produtos cuja exportação se reveste de interesse para os países menos desenvolvidos podem, na medida do possível, ser aplicadas de forma autónoma, antecipadamente e sem escalonamento. Será considerada a possibilidade de aperfeiçoar o SPG e outros regimes relativamente aos produtos que se revestem de especial interesse para os países menos desenvolvidos;

iii) As regras estabelecidas nos diferentes acordos e instrumentos e as disposições transitórias previstas no âmbito do Uruguay Round deveriam ser aplicadas de forma flexível e favorável no que se refere aos países menos desenvolvidos. Para o efeito, será concedida uma atenção especial às preocupações específicas e justificadas, manifestadas pelos países menos desenvolvidos nos conselhos e comités adequados;

iv) Na aplicação das medidas destinadas a atenuar os efeitos das importações e de outras medidas previstas no n.º 3, alínea c), do artigo XXXVII do GATT de 1947 bem como na disposição correspondente no GATT de 1994 os interesses dos países menos desenvolvidos em matéria de exportações serão objecto de uma atenção especial;

v) Os países menos desenvolvidos beneficiarão de um aumento significativo da assistência técnica para o desenvolvimento, o reforço e a diversificação das suas bases de produção e de exportação, incluindo no domínio dos serviços e da promoção das trocas comerciais, a fim de lhes permitir tirar o maior partido possível dos benefícios decorrentes do acesso liberalizado aos mercados.

3 - Acordam em acompanhar atentamente as necessidades específicas dos países menos desenvolvidos e a continuar a envidar esforços tendo em vista a adaptação de medidas positivas que se traduzem em novas oportunidades comerciais para estes países.

Declaração relativa à contribuição da Organização Mundial do Comércio para uma Maior Coerência na elaboração das políticas económicas a nível mundial.

1 - Os Ministros reconhecem que a globalização da economia mundial conduziu a uma crescente interacção entre as políticas económicas prosseguidas pelos diversos países, incluindo interacções entre os aspectos estruturais, macroeconómicos, comerciais, financeiros e de desenvolvimento dessas políticas. A tarefa de conseguir harmonizar essas políticas cabe em primeiro lugar aos governos a nível nacional, mas a sua coerência internacional é um elemento importante para aumentar a sua eficácia. Os acordos alcançados no Uruguay Round revelam que todos os governos participantes reconhecem que políticas comerciais mais liberais podem contribuir para um crescimento e desenvolvimento mais sustentáveis das suas economias nacionais e da economia mundial no seu conjunto.

2 - Uma cooperação bem sucedida em cada área da política económica contribui para o progresso noutras áreas. Uma maior estabilidade da taxa de câmbio, baseada em condições económicas e financeiras de base mais sólidas, deverá contribuir para uma expansão do comércio, um crescimento e desenvolvimento sustentáveis e uma correcção dos desequilíbrios externos. É igualmente necessário assegurar um fluxo adequado e atempado de recursos financeiros, em termos concessionais ou não, e de investimento real para os países em desenvolvimento, e efectuar mais esforços para resolver o problema da dívida, bem como para ajudar a assegurar o crescimento e desenvolvimento económicos. A liberalização comercial é uma componente cada vez mais importante para o êxito dos programas de ajustamento aplicados em muitos países, os quais têm, frequentemente, custo sociais transitórios bastante elevados. Neste contexto, os Ministros tomam nota do papel do Banco Mundial e do FMI no apoio ao ajustamento à liberalização comercial, incluindo o apoio a países em desenvolvimento importadores líquidos de produtos alimentares que se debatem a curto prazo com elevados custos resultantes das reformas no domínio do comércio de produtos agrícolas.

3 - Os resultados positivos do Uruguay Round constituem um enorme contributo para políticas económicas internacionais mais coerentes e complementares. Os resultados do Uruguay Round asseguram uma expansão do acesso ao mercado em benefício de todos os países, e constituem um quadro para o reforço das regras comerciais multilaterais. Os mesmos garantem igualmente que a política comercial será conduzida de um modo mais transparente, dando-se mais atenção aos benefícios, para a competitividade interna, de um quadro comercial aberto. O sistema comer-cial multilateral reforçado resultante do Uruguay Roundproporciona um fórum melhorado para a liberalização, contribui para uma fiscalização mais eficaz e assegura uma observância mais estrita das regras e disciplinas acordadas multilateralmente. Estas melhorias significam que a política comercial pode, no futuro, desempenhar um papel mais importante para assegurar a coerência das políticas económicas globais.

4 - Os Ministros reconhecem, todavia, que dificuldades que têm origem noutros domínios económicos que não o comercial não podem ser superadas apenas através de medidas adoptadas neste domínio. Deste modo, os Ministros salientam a importância de esforços destinados a melhorar outros elementos das políticas económicas globais para complementar a execução eficaz dos resultados alcançados no Uruguay Round.

5 - As inter-relações entre os diversos aspectos da política económica obrigam as instituições internacionais com responsabilidades em cada uma destas áreas a prosseguir políticas coerentes e complementares. Deste modo, a Organização Mundial do Comércio deve prosseguir e desenvolver acções de cooperação com as organizações internacionais responsáveis pelas questões financeiras e monetárias, embora respeitando o mandato, os requisitos de confidencialidade e a necessária autonomia dos processos decisórios de cada instituição e evitando a imposição aos governos de condicionalidades cruzadas ou exigência adicionais. Além disso, os Ministros convidam o Director-Geral da OMC a estudar, juntamente com o Director Executivo do Fundo Monetário Internacional e com o Presidente do Banco Mundial, as implicações das responsabilidades da OMC em matéria de cooperação com as instituições de Bretton Woods, bem como as formas que pode assumir tal cooperação, com vista a conseguir uma maior coerência em termos de políticas económicas globais.

Decisão relativa aos procedimentos de notificação

Os Ministros decidem recomendar a adopção, pela Conferência Ministerial, da decisão sobre o melhoramento e revisão dos procedimentos de notificação previstos infra.

Os Membros:

Desejosos de melhorar o funcionamento dos procedimentos de notificação no âmbito do Acordo que institui a Organização Mundial do Comércio(adiante designado o «Acordo OMC») e, deste modo, de contribuir para a transparência das políticas comerciais dos Membros e para a eficácia das medidas de fiscalização previstas para esse efeito;

Recordando as obrigações, previstas no âmbito do Acordo OMC, de publicar e notificar, incluindo as obrigações assumidas nos termos dos protocolos específicos de adesão, isenções e outros acordos concluídos pelos Estados Membros;

acordam o seguinte:

I - Obrigação geral de notificação

Os Membros reafirmam o seu compromisso de cumprirem as obrigações previstas nos acordos comerciais multilaterais e, se for caso disso, nos acordos comerciais plurilaterais, em matéria de publicação e notificação.

Os Membros recordam os seus compromissos assumidos na Memorando Relativo à Notificação, Consulta, Resolução de Litígios e Fiscalização adoptado em 28 de Novembro de 1979 (BISD 26S/210). No que respeita ao seu compromisso, assumido nesse Memorando, no sentido de notificar, o máximo possível, a sua adopção de medidas comerciais que afectem o funcionamento do GATT de 1994, sem prejuízo dos pareceres sobre a conformidade das medidas, ou da sua relevância, no que respeita aos direitos e obrigações previstos nos acordos comerciais multilaterais e, se for caso disso, nos acordos comerciais plurilaterais, os Membros acordam em respeitar, na medida do possível, a lista de medidas apresentada em anexo. Deste modo, os Membros acordam que a introdução ou alteração dessas medidas está sujeita aos requisitos de notificação previstos nos Memorando de Entendimento de 1979.

II - Registo Central de Notificações

Será estabelecido um registo central de notificações, que ficará sob a responsabilidade do Secretariado. Embora os Membros continuem a seguir os procedimentos de notificação em vigor, o Secretariado assegurará que o registo ficará em poder de elementos de informação indicados na medida pelo Membro em causa como sendo o seu objectivo, o seu âmbito comercial e a disposição ao abrigo da qual foi notificada. O registo fará referência cruzada das notificações por Membro e por obrigação.

O registo central informará anualmente cada Estado Membro das obrigações de notificação regular que aquele deverá cumprir durante o ano seguinte.

O registo central chamará a atenção dos Membros individuais para as obrigações de notificação regular que continuam por cumprir.

As informações do registo central sobre notificações individuais ficarão ao dispor, mediante pedido, de qualquer Membro que tenha o direito de receber a notificação em causa.

III - Revisão das obrigações e procedimentos de notificação

O Conselho do Comércio de Mercadorias procederá a uma revisão das obrigações e procedimentos de notificação nos termos dos acordos referidos no Anexo 1A do Acordo OMC. A revisão será efectuada por um grupo de trabalho, no qual poderão estar representados todos os Membros. O grupo será criado imediatamente após a data de entrada em vigor do Acordo OMC.

As atribuições do grupo de trabalho serão as seguintes:

- Proceder a uma revisão completa de todas as obrigações de notificação dos Membros previstas nos acordos que constam do Anexo 1A do Acordo OMC, com vista à sua simplificação, normalização e consolidação na medida do possível, e a fim de melhorar o cumprimento dessas mesmas obrigações, tendo em conta o objectivo geral de aumentar a transparência das políticas comerciais dos Membros e a eficácia dos acordos de fiscalização concluídos para esse efeito, e tendo igualmente em conta a possível necessidade, por parte de alguns países Membros em desenvolvimento, de ajuda para poderem cumprir as suas obrigações de notificação;

- Apresentar recomendações ao Conselho de Comércio de Mercadorias o mais tardar dois anos após a entrada em vigor do Acordo OMC.

ANEXO

Lista indicativa das medidas sujeitas a notificação (ver nota 1)

Pautas (incluindo o âmbito das consolidações, as disposições relativas ao SPG, as taxas aplicadas aos Membros de zonas de comércio livre/uniões aduaneiras, outras preferências).

Quotas e sobretaxas pautais.

Restrições quantitativas, incluindo limitação voluntária das exportações e outros acordos de comercialização administrada que afectem as importações.

Outras medidas não pautais, tal como a concessão de licenças e requisitos mistos; direitos niveladores variáveis.

Valorização aduaneira.

Regras de origem.

Contratos públicos.

Obstáculos técnicos.

Medidas de salvaguarda.

Medidas antidumping

Medidas de compensação.

Direitos de exportação.

Subsídios de exportação, isenções fiscais e financiamentos concessionais para a exportação.

Zonas de comércio livre, incluindo indústrias transformadoras situadas em zonas francas.

Restrições à exportação, incluindo a limitação voluntária das exportações e acordosde comercialização administrada.

Outra ajuda governamental, incluindo subsídios e isenções fiscais.

Papel das empresas públicas de comercialização.

Controlos cambiais relacionados com importações e exportações.

Comércio de compensação patrocinado pelo Estado.

Qualquer outra medida abrangida pelos acordos comerciais multilaterais prevista no Anexo 1A ao Acordo OMC.

(nota 1) A presente lista não prejudica as obrigações de notificação previstas nos acordos comerciais multilaterais que constam do Anexo 1A ao Anexo OMC ou, quando aplicável, dos acordos comerciais plurilaterais que constam do Anexo 4 ao Acordo OMC.

Declaração relativa às relações da Organização Mundial do Comércio com o Fundo Monetário Internacional.

Os Ministros:

Verificando as estreitas relações entre as Partes Contratantes no GATT de 1947 e o Fundo Monetário Internacional, bem como as disposições do GATT de 1947 que regem essas relações, em especial o artigo XI do GATT de 1947;

Reconhecendo que os participantes desejam basear as relações da Organização Mundial do Comércio com o Fundo Monetário Internacional, no que respeita aos domínios abrangidos pelos acordos comerciais multilaterais que figuram no Anexo 1A do Acordo OMC, nas disposições que têm regido as relações das Partes Contratantes no GATT de 1947 com o Fundo Monetário Internacional;

reafirmam que, salvo disposições em contrário do Acto Final, as relações da OMC com o Fundo Monetário Internacional, no que respeita aos domínios abrangidos pelos acordos comerciais multilaterais que figuram no Anexo 1A do Acordo OMC, se basearão nas disposições que têm regido as relações das Partes Contratantes no GATT de 1947 com o Fundo Monetário Internacional.

Decisão relativa às medidas respeitantes aos possíveis efeitos negativos do programa de reforma nos países menos desenvolvidos e nos países em desenvolvimento importadores líquidos de produtos alimentares.

1 - Os Ministros reconhecem que, com a progressiva execução do conjunto das decisões do Uruguay Round, aumentarão as oportunidades de expansão comercial e crescimento económico em benefício de todos os participantes.

2 - Os Ministros reconhecem que, durante o programa de reformas conducentes a uma maior liberalização do comércio agrícola, os países menos desenvolvidos e os países em desenvolvimento importadores líquidos de produtos alimentares podem ser prejudicados em matéria de disponibilidade de fornecimentos externos adequados de produtos alimentares de base em termos e condições razoáveis, incluindo dificuldades a curto prazo no financiamento de níveis normais de importações comerciais de produtos alimentares de base.

3 - Nessa conformidade, os Ministros acordam em estabelecer mecanismos adequados para assegurar que a execução das decisões do Uruguay Round em matéria de comércio agrícola não afecte negativamente a disponibilidade de ajuda alimentar suficiente para fazer face às necessidades alimentares dos países em desenvolvimento, especialmente dos países menos desenvolvidos e dos países em desenvolvimento importadores líquidos de produtos alimentares. Para este efeito os Ministros acordam no seguinte:

a) Rever o nível de ajuda alimentar estabelecido periodicamente pelo Comité da Ajuda Alimentar, no âmbito da Convenção da Ajuda Alimentar de 1986, e iniciar negociações no fórum adequado para definir o nível de autorizações de ajuda alimentar suficiente para satisfazer as necessidades legítimas dos países em desenvolvimento durante o programa de reforma;

b) Adoptar orientações destinadas a assegurar que uma crescente proporção de produtos alimentares de base seja fornecida aos países menos desenvolvidos e aos países em desenvolvimento importadores líquidos de produtos alimentares a título de subvenções e ou com um elemento de concessionalidade adequado, em conformidade com o artigo IV da Convenção da Ajuda Alimentar de 1986;

c) Ter em devida conta, no contexto dos seus programas de ajuda, os pedidos de concessão de ajuda técnica e financeira aos países menos desenvolvidos e aos países em desenvolvimento importadores líquidos de produtos alimentares, com vista a melhorar a sua produtividade e infra-estruturas agrícolas.

4 - Além disso, os Ministros acordam em assegurar que qualquer acordo relacionado com créditos à exportação de produtos agrícolas preveja um tratamento diferente para os países menos desenvolvidos e os países em desenvolvimento importadores líquidos de produtos alimentares.

5 - Os Ministros acordam que, em resultado do Uruguay Round, certos países em desenvolvimento podem sentir dificuldades a curto prazo no financiamento de níveis normais de importações comerciais e que esses países podem ser elegíveis para a utilização de recursos de instituições financeiras internacionais, com base tanto em instrumentos já existentes como em instrumentos a criar, no contexto de programas de ajustamento, de modo a fazerem face a tais dificuldades financeiras. A este respeito, os Ministros tomam nota do ponto 37 do relatório do Director-Geral às Partes Contratantes no GATT de 1947 sobre as suas consultas com o Director Executivo do Fundo Monetário Internacional e com o Presidente do Banco Mundial (MTN.GNG/NG14/W/35).

6 - As disposições da presente decisão serão objecto de revisão periódica pela Conferência Ministerial e a sua execução será acompanhada pelo Comité de Agricultura.

Decisão relativa à notificação da primeira integração por força do n.º 6 do artigo 2.º do Acordo sobre os Têxteis e o Vestuário.

Os Ministros acordam em que os participantes que mantenham restrições em conformidade com o n.º 1 do artigo 2.º do Acordo sobre os Têxteis e o Vestuário deverão notificar, de modo pormenorizado, ao Secretariado do GATT as medidas a tomar por força do n.º 6 do artigo 2.º do referido Acordo, o mais tardar, em 1 de Outubro de 1994. O Secretariado do GATT comunicará, no mais curto prazo de tempo, as notificações aos outros participantes, para informação. Estas notificações serão colocadas à disposição do Órgão de Supervisão dos Têxteis, quando for criado, para os fins previstos no n.º 21 do artigo 2.º do Acordo sobre os Têxteis e o Vestuário.

Decisão relativa ao memorando de entendimento proposto respeitante ao sistema de informação sobre as normas OMC-ISO.

Os Ministros decidem recomendar que o Secretariado da Organização Mundial do Comércio conclua com a Organização Internacional de Normalização («ISO») um memorando de entendimento com vista à criação de um sistema de informação no âmbito do qual:

1) Os Membros da ISONET transmitam ao Centro de Informação ISO/CEI em Genebra as notificações mencionadas nos pontos C e J do Código de Boa Prática para a Elaboração, Adopção e Aplicação de Normas, constante do Anexo 3 do Acordo sobre os Obstáculos Técnicos ao Comércio, segundo os procedimentos que dele constam;

2) Utilizem nos programas de trabalho referidos no ponto J os seguintes sistemas de classificação (alfa)numéricos:

a) Um sistema de classificação de normas que permita aos organismos de normalização atribuir a cada norma referida no programa de trabalho uma indicação (alfa)numérica do assunto de que trata;

b) Um sistema de codificação das fases que permita aos organismos de normalização atribuir a cada norma mencionada no programa de trabalho uma indicação (alfa)numérica da fase de desenvolvimento da norma; para este efeito, devem distinguir-se pelo menos cinco fases de desenvolvimento: 1) fase na qual foi tomada a decisão de desenvolver a norma, mas em que os trabalhos técnicos ainda não foram iniciados; 2) fase do início dos trabalhos técnicos, antes do período para apresentação das observações; 3) fase em que começou o período para apresentação das observações, sem que este tenha ainda sido concluído; 4) fase em que findou o período para apresentação das observações, mas em que a norma ainda não foi adoptada; e5) fase em que a norma foi adoptada;

c) Um sistema de identificação que abranja todas as normais internacionais, permitindo que os organismos de normalização mencionem para cada norma incluída no programa de trabalho uma referência (alfa)numérica da(s) norma(s) internacional(nais) utilizadas como base;

3) O Centro de Informação ISO/CEI envie, no mais curto prazo de tempo, ao Secretariado cópias de quaisquer notificações referidas no ponto C do Código de Boa Prática;

4) O Centro de Informações ISO/CEI publique regularmente as informações que tenha recebido nas notificações efectuadas ao abrigo dos pontos C e J do Código de Boa Prática; esta publicação, pela qual pode ser cobrada uma taxa aceitável, deve estar à disposição dos Membros da ISONET e, através do Secretariado, à disposição dos Membros da OMC.

Decisão relativa ao exame da publicação do Centro de Informação ISO/CEI

Os Ministros decidem que, em conformidade com o n.º 1 do artigo 13.º do Acordo sobre os Obstáculos Técnicos ao Comércio, do Anexo 1A do Acordo OMC, o Comité dos Obstáculos Técnicos ao Comércio nele instituído, sem prejuízo das disposições em matéria de consultas e de resolução de litígios, examinará, pelo menos uma vez por ano, a publicação fornecida pelo Centro de Informação ISO/CEI sobre as informações recebidas em conformidade com o Código de Boa Prática para a Elaboração, Adopção e Aplicação de Normas constante do Anexo 3 do Acordo, com vista a proporcionar aos Membros uma oportunidade de discussão de quaisquer matérias relacionadas com o funcionamento desse Código.

Para facilitar tal debate, o Secretariado da OMC facultará a cada Membro uma lista de todos os organismos de normalização que aceitaram o Código, bem como uma lista dos organismos de normalização que aceitaram ou se retiraram do Código desde a última revisão.

O Secretariado da OMC distribuirá também aos Membros, no mais curto prazo de tempo, cópias das notificações que tenha recebido do Centro de Informação ISO/CEI.

Decisão relativa à prevenção da evasão

Os Ministros:

Verificando que, embora o problema da evasão às medidas antidumping tenha feito parte das negociações que precederam o Acordo sobre a Aplicação do Artigo VI do GATT de 1994, os negociadores não conseguiram aprovar um texto específico;

Conscientes de que é desejável que sejam aplicáveis, o mais rapidamente possível, regras uniformes neste domínio;

decidem submeter esta questão para resolução ao Comité das Práticas Antidumping instituído pelo Acordo.

Decisão relativa ao exame do n.º 6 do artigo 17.º do Acordo sobre a Aplicação do Artigo VI do Acordo Geral sobre Pautas Aduaneiras e Comércio de 1994.

Os Ministros decidem o seguinte:

O critério de análise previsto no n.º 6 do artigo 17.º do Acordo sobre a Aplicação do Artigo VI do GATT de 1994 será reexaminado após um período de três anos a fim de se considerar a possibilidade da sua aplicação geral.

Declaração relativa à resolução de litígios em conformidade com o Acordo sobre a Aplicação do Artigo VI do Acordo Geral sobre Pautas Aduaneiras e Comércio de 1994 ou com a Parte V do Acordo sobre as Subvenções e Medidas de Compensação.

Os Ministros reconhecem, no que se refere à resolução de litígios em conformidade com o Acordo sobre a Aplicação do Artigo VI do GATT de 1994 ou com a Parte V do Acordo sobre as Subvenções e as Medidas de Compensação, a necessidade de resolver de forma consequente os litígios que possam surgir em matéria de medidas e direitos antidumping e de compensação.

Decisão relativa aos casos em que as administrações aduaneiras têm razões para duvidar da veracidade ou da exactidão do valor declarado.

Os Ministros convidam o Comité da Determinação do Valor Aduaneiro, instituído em conformidade com o Acordo sobre a Aplicação do Artigo VII do GATT de 1994, a adoptar a seguinte decisão:

O Comité da Determinação do Valor Aduaneiro:

Reafirmando que o valor transaccional constitui a primeira base para a determinação do valor, no âmbito do Acordo sobre a Aplicação do Artigo VII do GATT de 1994 (a seguir designado por «Acordo»);

Reconhecendo que a administração aduaneira pode deparar com casos em que tem razões para duvidar da veracidade ou da exactidão das informações ou dos documentos fornecidos pelos operadores económicos como justificação de um valor declarado;

Sublinhando que, ao agir dessa forma, a administração aduaneira não deverá prejudicar os interesses comerciais legítimos dos operadores;

Tendo em conta o artigo 17.º do Acordo, o n.º 6 do Anexo III do Acordo e as decisões pertinentes do Comité Técnico da Determinação do Valor Aduaneiro;

decide o seguinte:

1 - Sempre que for apresentada uma declaração e que a administração aduaneira tenha razões para duvidar da veracidade ou da exactidão das informações ou dos documentos fornecidos como justificação dessa declaração, a administração aduaneira pode solicitar ao importador que forneça indicações complementares, incluindo documentos ou outros elementos de prova, que atestem que o valor declarado corresponde ao montante total efectivamente pago ou a pagar pelas mercadorias importadas, ajustado em conformidade com as disposições do artigo 8.º Se, depois de ter recebido essas indicações complementares ou na ausência de resposta, a administração aduaneira continuar a ter dúvidas razoáveis quanto à veracidade ou à exactidão do valor declarado, pode considerar-se, tendo em conta as disposições do artigo 11.º, que o valor aduaneiro das mercadorias importadas não pode ser determinado por aplicação das disposições do artigo 1.º Antes de tomar uma decisão definitiva, a administração aduaneira comunicará ao importador, por escrito se tal lhe for solicitado, as razões que a levam a duvidar da veracidade ou da exactidão das informações ou documentos fornecidos, concedendo ao importador uma oportunidade razoável para responder. Quando tomar uma decisão definitiva, a administração aduaneira comunicará essa decisão por escrito ao importador, bem como as razões que a motivaram.

2 - No âmbito da aplicação do Acordo, é inteiramente adequado que um Membro auxilie outro Membro em condições mutuamente acordadas.

Decisão relativa aos textos respeitantes aos valores mínimos e às importações efectuadas por agentes, distribuidores e concessionários exclusivos.

Os Ministros decidem apresentar os textos seguintes ao Comité da Determinação do Valor Aduaneiro, instituído em conformidade com o Acordo sobre a Aplicação do Artigo VII do GATT de 1994, para adopção.

Quando um país em desenvolvimento formular uma reserva para poder conservar os valores mínimos fixados oficialmente, nos termos do disposto no n.º 2 do Anexo III, e demonstrar que para tal tem motivos válidos, o Comité apreciará o pedido de reserva de forma compreensiva.

Quando uma reserva for aceite, os termos e as condições referidos no n.º 2 do Anexo III deverão ter plenamente em conta as necessidades de desenvolvimento, financeiras e comerciais do país em desenvolvimento em questão.

1 - Alguns países em desenvolvimento receiam que possam surgir problemas na determinação do valor das importações efectuadas por agentes, distribuidores e concessionários exclusivos. Em conformidade com o n.º 1 do artigo 20.º, os países em desenvolvimento Membros podem diferir a aplicação das disposições do Acordo durante um período que não poderá exceder cinco anos. Neste contexto, os países em desenvolvimento Membros que invoquem esta disposição podem utilizar esse período para realizar estudos adequados e tomar quaisquer outras medidas que sejam necessárias para facilitar a aplicação.

2 - Tendo em conta o que precede, o Comité recomenda que o Conselho de Cooperação Aduaneira preste assistência aos países em desenvolvimento Membros, em conformidade com as disposições do Anexo II, na elaboração e realização de estudos sobre sectores identificados como susceptíveis de levantarem problemas, incluindo os relacionados com as importações efectuadas por agentes, distribuidores e concessionários exclusivos.

Decisão relativa aos convénios institucionais respeitantes ao Acordo Geral sobre o Comércio de Serviços.

Os Ministros decidem recomendar que o Conselho de Comércio de Serviços, na sua primeira reunião, adopte a decisão sobre órgãos subsidiários apresentada infra:

O Conselho de Comércio de Serviços:

Agindo nos termos do artigo XXIV com vista a facilitar a execução e a reforçar os objectivos do Acordo Geral sobre o Comércio de Serviços;

decide o seguinte:

1 - Quaisquer órgãos subsidiários criados pelo Conselho apresentarão anualmente, ou mais frequentemente, se necessário, um relatório ao Conselho sobre as suas actividades. Cada um desses órgãos aprovará o seu regulamento interno, podendo criar, se necessário, os seus próprios órgãos subsidiários.

2 - Qualquer comité sectorial terá as competências que lhe forem atribuídas pelo Conselho, tendo os Membros o direito de o consultar sobre quaisquer questões relacionadas com o comércio de serviços no sector em causa e sobre a aplicação do anexo sectorial a que pertence. Essas competências incluirão:

a) A revisão e fiscalização contínuas da execução do Acordo, no que respeita ao sector em causa;

b) A apresentação de propostas ou recomendações ao Conselho sobre qualquer questão relacionada com o comércio no sector em causa;

c) Se existir um anexo relativo ao sector, a análise de propostas de alteração desse anexo sectorial, bem como a apresentação de recomendações adequadas ao Conselho;

d) A constituição de um fórum para discussões técnicas, para a realização de estudos sobre medidas adoptadas pelos Membros e para a realização de estudos sobre quaisquer outras questões técnicas que afectem o comércio de serviços no sector em causa;

e) A prestação de assistência técnica aos países Membros em desenvolvimento e aos países em desenvolvimento que negoceiem a adesão ao Acordo que institui a Organização Mundial do Comércio, no que respeita à execução das obrigações ou a quaisquer outras questões que afectem o comércio de serviços no sector em causa; e

f) A cooperação com quaisquer outros órgãos subsidiários criados nos termos do Acordo Geral sobre o Comércio de Serviços ou com quaisquer organizações internacionais activas no sector em causa.

3 - É instituído um Comité sobre o Comércio de Serviços Financeiros, que terá as competências previstas no n.º 2.

Decisão relativa a certos processos de resolução de litígios para efeitos do Acordo Geral sobre o Comércio de Serviços.

Os Ministros decidem recomendar que o Conselho de Comércio de Serviços, na sua primeira reunião, adopte a seguinte decisão:

O Conselho de Comércio de Serviços:

Tendo em conta o carácter específico das obrigações e compromissos previstos no Acordo, bem como do comércio de serviços, no que respeita à resolução de litígios nos termos dos artigos XXII e XXIII;

decide o seguinte:

1 - Será estabelecida uma lista de personalidades a partir da qual serão seleccionados os membros do painel.

2 - Para este efeito, os Membros proporão nomes de indivíduos que possuam as qualificações referidas no n.º 3, com vista à sua inclusão na lista, indicando as suas qualificações e, se for caso disso, os domínios específicos em que os mesmos são peritos.

3 - Os painéis serão compostos por indivíduos bem qualificados, funcionários governamentais ou não, que possuam experiência em questões relacionadas com o Acordo Geral sobre o Comércio de Serviços e ou com o comércio de serviços, incluindo questões regulamentares afins. Os membros do painel agirão a título individual e não como representantes de qualquer governo ou organização.

4 - Os painéis para a resolução de litígios em questões sectoriais deverão ter os especialistas necessários nos domínios específicos onde se verifica o diferendo.

5 - O Secretariado será depositário da lista e aplicará os procedimentos necessários para a sua administração, em consulta com o presidente do Conselho.

Decisão relativa ao comércio de serviços e ao ambiente

Os Ministros decidem recomendar ao Conselho de Comércio de Serviços a adopção, na sua primeira reunião, da seguinte decisão:

O Conselho de Comércio de Serviços:

Reconhecendo que as medidas necessárias para proteger o ambiente podem colidir com as disposições do Acordo; e

Considerando que, uma vez que as medidas necessárias para proteger o ambiente têm tipicamente como objectivo a protecção da saúde humana, animal ou vegetal, não é claro que sejam necessárias mais medidas para além das previstas na alínea b) do artigo XIV;

decide o seguinte:

1 - A fim de estudar a necessidade de uma alteração do artigo XIV do Acordo para ter em conta tais medidas, solicitar ao Comité de Comércio e Ambiente a análise e apresentação de um relatório, eventualmente com recomendações, sobre a relação entre o comércio de serviços e o ambiente, incluindo a questão do desenvolvimento sustentável. O Comité analisará igualmente a relevância dos acordos intergovernamentais sobre o ambiente e a sua relação com o Acordo.

2 - O Comité apresentará os resultados dos seus trabalhos na primeira reunião bienal da Conferência Ministerial após a entrada em vigor do Acordo que institui a Organização Mundial do Comércio.

Decisão relativa às negociações sobre a circulação de pessoas singulares

Os Ministros:

Verificando os compromissos resultantes das negociações do Uruguay Round sobre a circulação de pessoas singulares tendo em vista a prestação de serviços;

Conscientes dos objectivos do Acordo Geral sobre o Comércio de Serviços, incluindo a crescente participação dos países em desenvolvimento no comércio de serviços e a expansão das suas exportações de serviços;

Reconhecendo a importância de que sejam atingidos níveis mais elevados de compromissos no que respeita à circulação de pessoas singulares por forma a proporcionar um equilíbrio das vantagens no âmbito do Acordo Geral sobre o Comércio de Serviços;

decidem o seguinte:

1 - As negociações sobre uma maior liberalização da circulação de pessoas singulares tendo em vista a prestação de serviços deverão prosseguir para além da conclusão do Uruguay Round, por forma a permitir que, no âmbito do Acordo Geral sobre o Comércio de Serviços, sejam alcançados níveis mais elevados de compromissos por parte dos participantes.

2 - É criado um Grupo de Negociação sobre a Circulação de Pessoas Singulares, ao qual incumbirá a realização das negociações. O Grupo estabelecerá os seus próprios procedimentos e informará periodicamente o Conselho do Comércio de Serviços.

3 - O Grupo de Negociações realizará a sua primeira sessão de negociações, o mais tardar, em 16 de Maio de 1994. Concluirá estas negociações e apresentará um relatório final, o mais tardar, seis meses após a entrada em vigor do Acordo que cria a Organização Mundial do Comércio.

4 - Os compromissos resultantes destas negociações serão inscritos nas listas de compromissos específicos dos Membros.

Decisão relativa aos serviços financeiros

Os Ministros:

Verificando que os compromissos em matéria de serviços financeiros, inscritos pelos participantes nas respectivas listas aquando da conclusão do Uruguay Round, entrarão em vigor, numa base NMF, simultaneamente com o Acordo que cria a Organização Mundial do Comércio (a seguir designado o «Acordo OMC»);

decidem o seguinte:

1 - Não obstante o disposto no artigo XXI do Acordo Geral sobre o Comércio de Serviços, no final de um período que termina, o mais tardar, seis meses após a data da entrada em vigor do Acordo OMC, os Membros poderão melhorar, alterar ou retirar, no todo ou em parte, os respectivos compromissos neste sector sem oferecer compensação. Simultaneamente, não obstante as disposições do Anexo relativo às isenções das obrigações previstas no artigo II, os Membros definirão as respectivas posições finais no que respeita às isenções do tratamento da NMF neste sector. A partir da data da entrada em vigor do Acordo OMC e até ao final do período acima referido, não serão aplicáveis as isenções que figuram no Anexo relativo às isenções das obrigações previstas no artigo II que estejam condicionadas pelo nível dos compromissos assumidos pelos outros participantes ou pelas respectivas isenções.

2 - O Comité do Comércio de Serviços Financeiros acompanhará de perto os progressos de todas as negociações realizadas por força da presente decisão e informará a esse respeito o Conselho do Comércio de Serviços, o mais tardar, quatro meses após a data da entrada em vigor do Acordo OMC.

Decisão relativa às negociações sobre os serviços de transporte marítimo

Os Ministros:

Verificando que os compromissos em matéria de serviços de transporte marítimo, inscritos pelos participantes nas respectivas listas aquando da conclusão do Uruguay Round, entrarão em vigor, numa base NMF, simultaneamente com o Acordo que cria a Organização Mundial do Comércio;

decidem o seguinte:

1 - No âmbito do Acordo Geral sobre o Comércio de Serviços, serão iniciadas negociações, de carácter voluntário, no sector dos serviços de transporte marítimo. As negociações terão um alcance geral e procurarão estabelecer compromissos no domínio do transporte marítimo internacional, serviços auxiliares e acesso e utilização de instalações portuárias, com vista à eliminação de restrições dentro de um determinado prazo.

2 - Para cumprir este mandato, é criado um Grupo de Negociação sobre os Serviços de Transporte Marítimo (a seguir designado «GNSTM»). O GNSTM apresentará periodicamente relatórios sobre a evolução destas negociações.

3 - Podem participar nas negociações no âmbito do GNSTM todos os Estados, incluindo as Comunidades Europeias, que comuniquem a sua intenção de nelas participar. Até à data, comunicaram a sua intenção de participar nas negociações:

Argentina, Canadá, Comunidades Europeias e os seus Estados membros, Coreia, Estados Unidos, Filipinas, Finlândia, Hong-Kong, Indonésia, Islândia, Malásia, México, Noruega, Nova Zelândia, Polónia, Roménia, Singapura, Suécia, Suíça, Tailândia, Turquia.

As futuras notificações de intenção de participação deverão ser enviadas ao depositário do Acordo OMC.

4 - O GNSTM realizará a sua primeira sessão de negociações, o mais tardar, em 16 de Maio de 1994. Concluirá estas negociações e apresentará um relatório final, o mais tardar, em Junho de 1996. O relatório final do GNSTM deverá fixar uma data para aplicação dos resultados destas negociações.

5 - Até à conclusão das negociações, fica suspensa a aplicação a este sector das disposições do artigo II e dos pontos 1 e 2 do Anexo relativo às derrogações às obrigações do artigo II, não sendo necessário apresentar uma lista de derrogações ao tratamento NMF. Não obstante o disposto no artigo XXI do Acordo, os Membros terão a faculdade de, aquando da conclusão das negociações, melhorar, alterar ou retirar quaisquer compromissos assumidos neste sector durante o Uruguay Round, sem oferecer compensações. Simultaneamente, não obstante disposições do Anexo relativo às derrogações às obrigações do artigo II, os Membros deverão definir a respectiva posição final no que respeita às derrogações ao tratamento NMF neste sector. Caso as negociações não sejam bem sucedidas, o Conselho do Comércio de Serviços decidirá da sua prossecução em conformidade com o presente mandato.

6 - Os compromissos resultantes das negociações, incluindo a data da sua entrada em vigor, serão inscritos nas listas anexas ao Acordo Geral sobre o Comércio de Serviços e serão regidos pelas disposição do Acordo.

7 - Entende-se que, a partir deste momento e até à data de aplicação, a determinar em conformidade com o ponto 4, os participantes não aplicarão, qualquer medida que afecte o comércio dos serviços de transporte marítimo, excepto em resposta a medidas aplicadas por outros países e a fim de manter ou melhorar a liberdade de prestação de serviços de transporte marítimo, ou de um modo que favoreça a sua posição e o seu poder de negociação.

8 - A aplicação do ponto 7 será objecto de vigilância por parte do GNSTM. Qualquer participante poderá assinalar ao GNTB qualquer acção ou omissão que considere pertinente para o cumprimento do disposto no ponto 7. Considera-se que as correspondentes notificações foram apresentadas ao GNSTM logo que tenham sido recebidas pelo Secretariado.

Decisão relativa às negociações sobre as telecomunicações de base

Os Ministros decidem o seguinte:

1 - Serão iniciadas negociações, de carácter voluntário, tendo em vista a liberalização progressiva do comércio de redes e serviços de transporte de telecomunicações (a seguir designados «telecomunicações de base») no âmbito do Acordo Geral sobre o Comércio de Serviços.

2 - Sem prejuízo dos seus resultados, as negociações terão um alcance geral, não excluindo a priori quaisquer telecomunicações de base.

3 - Para cumprir este mandato, é criado um Grupo de Negociação sobre Telecomunicações de Base (a seguir designado «GNTB»). O GNTB apresentará periodicamente relatórios sobre a evolução destas negociações.

4 - Podem participar nas negociações no âmbito do GNTB todos os Estados, incluindo as Comunidades Europeias, que comuniquem a sua intenção de nelas participar. Até à data, comunicaram a sua intenção de participar nas negociações:

Austrália, Áustria, Canadá, Chile, Chipre, Comunidades Europeias e os seus Estados membros, Coreia, Estados Unidos, Finlândia, Hong-Kong, Hungria, Japão, México, Noruega, Nova Zelândia, República Eslovaca, Suécia, Suíça e Turquia.

As futuras notificações de intenção de participação devem ser enviadas ao depositário do Acordo que cria a Organização Mundial do Comércio.

5 - O GNTB realizará a sua primeira sessão de negociações, o mais tardar, em 16 de Maio de 1994. Concluirá estas negociações e apresentará um relatório final, o mais tardar, em 30 de Abril de 1996. O relatório final do GNTB deverá fixar uma data para a aplicação dos resultados destas negociações.

7 - Entende-se que, a partir deste momento e até à data de aplicação, a determinar em conformidade com o ponto 5, nenhum participante aplicará qualquer medida que afecte o comércio das telecomunicações de base de um modo que favoreça a sua posição e o seu poder de negociação. Entende-se que a presente disposição não impedirá a conclusão de acordos de direito privado ou de direito público sobre a prestação de serviços de telecomunicações de base.

8 - A aplicação do ponto 7 será objecto de viligância por parte do GNTB. Qualquer participante poderá assinalar ao GNTB qualquer acção ou omissão que considere pertinente para o cumprimento do disposto no ponto 7. Considera-se que as correspondentes notificações foram apresentadas ao GNTB logo que tenham sido recebidas pelo Secretariado.

Decisão relativa aos serviços das profissões liberais

Os Ministros decidem recomendar que o Conselho do Comércio de Serviços adopte, na sua primeira reunião, a seguinte decisão:

O Conselho do Comércio de Serviços:

Reconhecendo o impacte que as medidas de regulamentação relativas às qualificações profissionais, às normas técnicas e às licenças exercem na expansão do comércio de serviços das profissões liberais;

Desejando estabelecer disciplinas multilaterais destinadas a garantir que, quando sejam assumidos compromissos específicos, tais medidas de regulamentação não constituam entraves desnecessários à prestação de serviços das profissões liberais;

decide o seguinte:

1 - O programa de trabalho previsto no n.º 4 do artigo VI relativo às regulamentações nacionais deve ser executado imediatamente. Para o efeito, será criado um Grupo de Trabalho sobre os Serviços das Profissões Liberais encarregado de examinar as disciplinas necessárias para garantir que as medidas relativas aos requisitos e procedimentos em matéria de qualificações, normas técnicas e requisitos a nível de licenças no domínio dos serviços das profissões liberais não constituam entraves desnecessários ao comércio e de apresentar os relatórios pertinentes acompanhados de recomendações.

2 - O Grupo de Trabalho formulará prioritariamente recomendações para a elaboração de disciplinas multilaterais no sector da contabilidade, de modo a concretizar compromissos específicos. Ao formular tais recomendações, o Grupo de Trabalho concentrará os seus esforços:

a) No estabelecimento de disciplinas multilaterais relativas ao acesso aos mercados por forma a assegurar que os requisitos em matéria de regulamentação nacional: i) se baseiem em critérios objectivos e transparentes, tais como a competência e a capacidade para prestar o serviço; ii) não sejam mais rígidos que o necessário para assegurar a qualidade do serviço, facilitando deste modo a liberalização efectiva dos serviços de contabilidade;

b) Na utilização de normas internacionais, incentivando deste modo a cooperação com as organizações internacionais pertinentes tal como definidas no n.º 5, alínea b), do artigo VI, por forma a dar pleno cumprimento ao n.º 5 do artigo VII;

c) Na viabilização da aplicação efectiva do n.º 6 do artigo VI do Acordo, estabelecendo orientações para o reconhecimento das qualificações.

Ao elaborar estas disciplinas, o Grupo de Trabalho terá em conta a importância dos organismos públicos e privados de regulamentação dos serviços das profissões liberais.

Decisão relativa à adesão ao Acordo sobre Contratos Públicos

1 - Os Ministros convidam o Comité dos Contratos Públicos, instituído no âmbito do Acordo sobre Contratos Públicos que figura no Anexo 4 b) do Acordo que cria a Organização Mundial do Comércio, a precisar o seguinte:

a) Um Membro interessado em aderir ao Acordo sobre Contratos Públicos, em conformidade com o n.º 2 do artigo XXIV do referido Acordo, comunicará esse facto ao Director-Geral da OMC, transmitindo-lhe as informações pertinentes, incluindo uma oferta relativa às entidades e serviços em questão que será integrada no Apêndice I, tendo em conta as disposições pertinentes do Acordo, em especial as do artigo I e, se for caso disso, as do artigo V;

b) A comunicação será transmitida às Partes no Acordo;

c) O Membro interessado em aderir realizará consultas com as Partes sobre as condições da sua adesão ao Acordo;

d) A fim de facilitar a adesão, o Comité criará um grupo de trabalho se o Membro em questão ou qualquer das Partes no Acordo o solicitar. O grupo de trabalho examinará: i) a oferta feita pelo Membro candidato à adesão e ii) as informações pertinentes no que respeita às oportunidades de exportação para os mercados das Partes, tomando em consideração as capacidades de exportação existentes e potenciais do Membro candidato à adesão, bem como as possibilidades de exportação das Partes para o mercado desse Membro;

e) Logo que o Comité tenha tomado a decisão de aceitar as condições de adesão, incluindo as listas de entidades e serviços em questão do Membro aderente, este último deverá depositar junto do Director-Geral da OMC um instrumento de adesão no qual serão enunciadas as condições assim acordadas. As listas de entidades e serviços em questão apresentadas pelo Membro aderente, redigidas em língua inglesa, francesa e espanhola, serão anexadas ao Acordo;

f) Antes da entrada em vigor do Acordo OMC, os procedimentos acima descritos serão aplicáveis mutatis mutandis às Partes Contratantes no GATT de 1947 interessadas na adesão, sendo as funções atribuídas ao Director-Geral da OMC desempenhadas pelo Director-Geral das Partes Contratantes no GATT de 1947.

2 - Note-se que as decisões do Comité são tomadas por consenso. Note-se igualmente que qualquer Parte pode invocar a cláusula de não aplicação prevista n.º 11 do artigo XXIV.

Decisão relativa à aplicação e revisão do Memorando de Entendimento sobre as Regras e Processos Que Regem a Resolução de Litígios.

Os Ministros:

Recordando a Decisão das Partes Contratantes, de 22 de Fevereiro de 1994, no sentido de as regras e processos do GATT de 1947 no domínio da resolução de litígios se manterem em vigor até à data de entrada em vigor do Acordo que institui a Organização Mundial do Comércio:

Convidam os conselhos e comités relevantes a decidir que tais regras e processos são aplicáveis para efeitos de resolução de qualquer litígio relativamente ao qual foi solicitada uma consulta antes daquela data.

Convidam a Conferência Ministerial a concluir uma revisão completa das regras e processos de resolução de litígios no âmbito da Organização Mundial do Comércio no prazo de quatro anos a contar da data de entrada em vigor do Acordo que institui a Organização Mundial do Comércio e a adoptar uma decisão, aquando da sua primeira reunião após a conclusão da revisão, no sentido de continuar, alterar ou extinguir tais normas e processos de resolução de litígios.

MEMORANDO DE ENTENDIMENTO SOBRE OS COMPROMISSOS EM MATÉRIA DE SERVIÇOS FINANCEIROS

Os participantes no Uruguay Round tiveram a faculdade de assumir compromissos específicos em matéria de serviços financeiros no âmbito do Acordo Geral sobre o Comércio de Serviços (a seguir designado «o Acordo») com base numa abordagem distinta da prevista nas disposições da parte III do Acordo. Foi acordado que esta abordagem poderia ser aplicada sob reserva de:

i) Não ser contrária às disposições do Acordo;

ii) Não prejudicar o direito de qualquer Membro consignar os seus compromissos específicos em listas, em conformidade com a abordagem prevista na parte III do Acordo;

iii) Os compromissos específicos dela resultantes serem aplicados com base no princípio da nação mais favorecida;

iv) Não existir qualquer presunção quanto ao grau de liberalização que um Membro se compromete a assegurar por força do Acordo.

Os Membros interessados, com base em negociações e sob reserva de condições e restrições nos casos especificados, inscreveram compromissos específicos nas suas listas, em conformidade com a abordagem seguidamente apresentada.

A - Statu quo

Quaisquer condições, limitações e restrições aos compromissos seguidamente enunciados devem limitar-se às medidas não conformes existentes.

B - Acesso aos mercados

Direitos de monopólio

1 - Para além do artigo VIII do Acordo, é aplicável o seguinte:

Cada Membro enumerará, na sua lista respeitante aos serviços financeiros, os direitos de monopólio existentes e envidará esforços no sentido de os eliminar ou de reduzir o seu âmbito. Não obstante o disposto na alínea b) do ponto 1 do Anexo sobre Serviços Financeiros, o presente parágrafo é aplicável às actividades referidas na subalínea iii) da alínea b) do ponto 1 do Anexo.

Serviços financeiros adquiridos por entidades públicas

2 - Não obstante o disposto no artigo XIII do Acordo, cada Membro velará por que os prestadores de serviços financeiros de qualquer outro Membro estabelecidos no seu território beneficiem do tratamento da nação mais favorecida e do tratamento nacional no que respeita à compra ou aquisição de serviços financeiros por entidades públicas do Membro no seu território.

Comércio transfronteiras

3 - Cada Membro permitirá aos prestadores não residentes de serviços financeiros a prestação, enquanto contratante principal, através de um intermediário ou enquanto intermediário, segundo modalidades e em condições que concedam o tratamento nacional, dos Seguintes serviços:

a) Seguro contra riscos relacionados com:

i) O transporte marítimo e a aviação comercial, o lançamento de naves especiais e os transportes por elas efectuados (incluindo os satélites), que cubram a totalidade ou parte dos seguintes elementos: as mercadorias transportadas, o veículo que as transporta e qualquer responsabilidade daí decorrente;

ii) As mercadorias em trânsito internacional;

b) Resseguro e retrocessão, bem como os serviços auxiliares dos seguros referidos na subalínea iv) da alínea a) do ponto 5 do Anexo;

c) Fornecimento e transferência de informações financeiras e tratamento de dados financeiros referidos na subalínea v) da alínea a) do ponto 5 do Anexo e serviços de consultoria e outros serviços auxiliares, com exclusão da intermedição, relacionados com os serviços bancários e outros serviços financeiros referidos na subalínea xvi) da alínea a) do ponto 5 do Anexo.

4 - Cada Membro permitirá que os seus residentes adquiram, no território de qualquer outro Membro, os serviços financeiros referidos:

a) Na alínea a) do ponto 3;

b) Na alínea b) do ponto 3; e

c) Nas subalíneas v) a xvi) da alínea a) do ponto 5 do Anexo.

Presença comercial

3 - Cada Membro concederá aos prestadores de serviços financeiros de qualquer outro Membro o direito de estabelecerem ou desenvolverem uma presença comercial no seu território, incluindo através da aquisição de empresas existentes.

6 - Um Membro poderá impor condições e procedimentos para autorizar o estabelecimento ou o desenvolvimento de uma presença comercial, desde que os mesmos não iludam a obrigação que incumbe a esse Membro por força do ponto 5 e sejam compatíveis com as outras obrigações previstas no Acordo.

Novos serviços financeiros

7 - Um membro permitirá que os prestadores de serviços financeiros de qualquer outro Membro estabelecidos no seu território aí ofereçam qualquer novo serviço financeiro.

Transferência e tratamento de informações

8 - Nenhum Membro tomará medidas que impeçam a transferência de informações ou o tratamento de informações financeiras, incluindo a transferência de dados por meios electrónicos, ou que, sob reserva de regras de importação conformes aos acordos internacionais, impeçam a transferência de equipamento, sempre que tal transferência de informações, tratamento de informações financeiras ou transferências de equipamento sejam necessários para o desenvolvimento das actividades correntes de qualquer prestador de serviços financeiros. O disposto no presente ponto não pode restringir o direito de um Membro proteger os dados pessoais, a vida privada e o carácter confidencial dos registos e contas pessoais, desde que tal direito não seja utilizado para iludir as disposições do Acordo.

Entrada temporária de pessoal

9 - a) Cada Membro permitirá a entrada temporária no seu território do seguinte pessoal de um prestador de serviços financeiros de qualquer outro Membro que esteja a estabelecer ou que tenha estabelecido uma presença comercial no seu território:

i) Quadros superiores de direcção que detenham informações exclusivas fundamentais para o estabelecimento, controlo e funcionamento dos serviços do prestador de serviços financeiros;

ii) Peritos nas operações do prestador de serviços financeiros.

b) Cada Membro autorizará, sob reserva das disponibilidades de pessoal qualificado no seu território, a entrada temporária no seu território do seguinte pessoal associado a uma presença comercial de um prestador de serviços financeiros de qualquer outro Membro:

i) Peritos em serviços informáticos, de telecomunicações e contabilidade do prestador de serviços financeiros;

ii) Peritos no domínio actuarial e jurídico.

Medidas não discriminatórias

10 - Cada Membro esforçar-se-á por eliminar ou limitar quaisquer efeitos negativos significativos para os prestadores de serviços financeiros de qualquer outro Membro resultantes de:

a) Medidas não discriminatórias que impeçam os prestadores de serviços financeiros de oferecer no território do Membro, na forma por ele estabelecida, todos os serviços financeiros por ele autorizados;

b) Medidas não discriminatórias que limitem a expansão das actividades dos prestadores de serviços financeiros em todo o território do Membro;

c) Medidas de um Membro, quando esse Membro aplique as mesmas medidas à prestação tanto de serviços bancários como de serviços relacionados com valores mobiliários e quando um prestador de serviços financeiros de qualquer outro Membro concentre as suas actividades na prestação de serviços relacionados com valores mobiliários;

d) Outras medidas que, embora respeitem as disposições do Acordo, afectem negativamente a capacidade dos prestadores de serviços de qualquer outro Membro para actuar, competir ou entrar no mercado desse Membro;

desde que as medidas tomadas por força do presente ponto não provoquem injustamente uma discriminação contra os prestadores de serviços financeiros do Membro que tome tais medidas.

11 - No que respeita às medidas não discriminatórias referidas nas alíneas a) e b) do ponto 10, cada Membro procurará não limitar ou restringir o nível existente de possibilidades comerciais nem as vantagens de que já beneficiem no território do Membro os prestadores de serviços financeiros de todos os outros Membros enquanto grupo, desde que este compromisso não implique uma discriminação injusta relativamente aos prestadores de serviços financeiros do Membro que aplique tais medidas.

C - Tratamento nacional

1 - Segundo modalidades e em condições que concedem o tratamento nacional, cada Membro concederá aos prestadores de serviços financeiros de qualquer outro Membro estabelecidos no seu território o acesso aos sistemas de pagamento e de compensação administrados por entidades públicas, bem como às facilidades de financiamento e de refinanciamento oficiais disponíveis no decurso de operações comerciais normais. O presente ponto não tem por objectivo conferir o acesso às facilidades da entidade financiadora de última instância do Membro.

2 - Quando um Membro exija aos prestadores de serviços financeiros de qualquer outro Membro a filiação, a participação ou o acesso a um organismo regulador autónomo, a uma bolsa ou mercado de valores mobiliários ou de operações de futuros, a uma agência de compensação ou a qualquer outra organização ou associação, para que possam prestar os serviços financeiros numa base de igualdade com os prestadores de serviços financeiros do Membro ou quando o Membro conceda, directa ou indirectamente, a tais entidades, privilégios ou vantagens para a prestação de serviços financeiros, o referido Membro velará por que tais entidades concedam o tratamento nacional aos prestadores de serviços financeiros de qualquer outro Membro residentes no seu território.

D - Definições

Para efeitos da presente abordagem:

1) Um prestador de serviços financeiros não residente é um prestador de serviços financeiros de um Membro que presta um serviço financeiro no território de outro Membro a partir de um estabelecimento situado no território de outro Membro, independentemente do facto de esse prestador de serviços financeiros ter ou não uma presença comercial no território do Membro em que o serviço financeiro é prestado;

2) Por «presença comercial» entende-se uma empresa situada no território de um Membro tendo em vista a prestação de serviços financeiros e inclui as filiais cujo capital detém total ou parcialmente, as empresas comuns (joint ventures), as sociedades de pessoas, as empresas em nome individual, as operações de franquia, as sucursais, as agências, os escritórios de representação ou outras organizações;

3) Um novo serviço financeiro é um serviço de carácter financeiro, incluindo os serviços relacionados com produtos existentes ou novos ou o modo de disponibilização de um produto, que não é prestado por qualquer outro prestador de serviços financeiros no território de um determinado Membro mas que é prestado no território de um outro Membro.